I
LIBRARY
OF THE .
UNIVERSITY OF CALIFORNIA.
GIFT OF
Class
WAR DEPARTMENT :: OFFICE OF THE JUDGE-ADVOCATE GENERAL
THE
MILITARY LAWS OF THE
UNITED STATES
Fourth Edition, 1901
Prepared under the direction of
The Honorable ELIHU ROOT, Secretary of War
By Brig. Gen. GEORGE B. DAVIS, Judge-
Advocate General, United States Army
WITH SUPPLEMENT SHOWING CHANGES
TO MARCH 4, 1907, AND APPENDICES
By MAJ. JOHN BIDDLE PORTER
Judge-Advocate, United States Army
WASHINGTON
GOVERNMENT PRINTING OFFICE
1908
tool
WAR DEPARTMENT.
Document No. 31 1 .
Office of the Judge- Advocate General.
TABLE OF CONTENTS.
Page.
CHAPTER I. The Executive
II. Provisions Applicable ,to the Several Executive Departments . . 12-44
III. The Department of War 45.55
IV. Provisions Applicable to Several Classes of Officers 56-71
V. The Department of the Treasury — The Accounting Officers 72-120
VI. The Post-Office Department. 121-126
VII. The Department of Justice — Habeas Corpus — The Court of
Claims 127-158
VIII. The Department of the Navy — The Marine Corps 159-165
IX. The Department of the Interior 166
X. The Revised Statutes— The Statutes at Large— The Army
Regulations — The Army Register 167-182
XI. The Military Establishment — General Provisions of Organiza-
tion 183-204
XII. General Officers, Aids, and Military Secretaries 205-207
XIII. Rank and Command — Tactical and Territorial Organizations. . . 208-213
XIV. The Staff Departments — General Provisions — Disbursing Offi-
cers 214-252
XV. The Adjutant-General's Department 253-258
XVI. The Inspector-General's Department 259-264
XVII. The Judge- Advocate-General's Department 265-268
XVIII. The Quartermaster's Department 269-292
XIX. The Subsistence Department 293-308
XX. The Pay Department ; 309-349
XXI. The Medical Department 350-365
XXII. The Engineer Department 366-438
XXIII. The Ordnance Department 439-459
XXIV. The Signal Department 460-465
XXV. The Record and Pension Office 466-473
XXVI. Post and Regimental Chaplains 474-476
XXVII. Commissioned Officers 477-502
XXVIII. Brevets — Medals of Honor — Certificates of Merit — Foreign Dec-
orations 503-508
XXIX. Enlisted Men 509-532
XXX. Troops of the Line 533-542
XXXI. The Military Academy— The Service Schools '. . . . 543-565
XXXII. Contracts and Purchases 566-596
XXXIII. The Public Lands— Military Reservations— Military Posts 597-626
XXXIV. The Public Property 627-634
XXXV. The Militia— The Militia of the District of Columbia— The Ter-
ritorial Militia 635-670
XXXVI. Military Tribunals— Courts-Martial— Courts of Inquiry 671-748
XXXVII. Citizenship and Naturalization 749-757
XXXVIII. The Indians— Indian Agents— The Indian Country 758-791
XXXIX. Employment of Military Force— (1) In Resisting Invasion;
(2) In Suppression of Insurrection; (3) In Support of the
Civil Authority 792-831
\3
166431
4 TABLE OF CONTENTS.
Page.
CHAPTER XL. Pensions 832-886
XLI. The Soldiers' Home 887-895
XLII. The National Home for Disabled Volunteer Soldiers.. 896-911
XLIII. The Government Hospital for the Insane 912-914
XLIV. National Military Parks— The Yellowstone Park 915-953
XLV. National Cemeteries 954-959
XLVI. Flag and Seal of the United States 960-961
XLVII. The Articles of War 962-1026
APPENDICES.
I. The Geneva Convention of 1864 1029-1034
II. Additional Articles of October 20, 1868 1034-1040
III. Additional agreement of July 29, 1899, for the Adaptation of the
Rules of the Geneva Convention to Maritime Warfare 1041-1043
IV. The American National Red Cross 1044-1047
V. The Army Reorganization Act of February 2, 1901 1048-1066
VI. The Maximum Punishment Order 1067-1073
VII. Instructions for the Government of the Armies of the United States
in the Field (General Orders, No. 100, War Department, of 1863) . 1074-1095
VIII. Civil Service Rules.. . 1096-1116
CHAPTER I.
THE EXECUTIVE.
Par.
1. The executive power.
2. Power of the President as Commander
in Chief; the Cabinet; the pardoning
power.
3. Term of office.
4. Succession of Vice-President.
5. Succession to President and Vice-
President.
6. The same.
1. The executive power1 shall be vested in a President
of the United States of America. He^ shall hold his office t^1™' Art 11,
during the term of four years. * * Constitution,
Art. II, sec. 1.
2. The President shall be Commander in Chief of
Par.
7. The treaty-making power; appoint-
ments to office.
8. Recess appointments.
9. The same.
10. Commissions.
11. Notification of appointments to Sec-
retary of the Treasury.
12. The same, nominations, rejections,
etc.
Army and Navy of the United States, and of the militia of chiSmander in
the several States, when called into the actual service of Sec- 2i ibUL
the United States;2 he may require the opinion, in writing,
1 The Executive Power. — The executive power is vested in a President, and, as far
as his powers are derived from the Constitution, he is beyond the reach of any other
Department, except in the mode prescribed by the Constitution through the impeach-
ing power. Kendall v. U. S., 12 Pet., 524, 610; Marbury v. Madison, 1 Cranch,
137, 166.
Execution of the laws. — The President is required to see that the laws are faithfully
executed, but he is not obliged to execute them himself. IV Opin. Att. Gen., 515;
Williams v. U. S., 12 Pet, 524, 610. The President speaks and acts through the
heads of the several Departments in relation to subjects which appertain to their
respective duties. Wilcox v. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U.
S., 755; Runkle v. U. S., 122 U. S., 543, 557. As a general rule, the direction of the
President is presumed in all instructions and orders issuing from the competent
Department. VII Opin. Att. Gen., 453. In a matter which the law confides to the
pure discretion of the Executive, the decision of the President, or proper head of
Department, on any question of fact involved is conclusive, and is not subject to
review by any other authority in the United States. VI Opin. Att. Gen., 226.
Marbury v. Madison, 1 Cr., 137, 166. The President can not be restrained by injunc-
tion from executing a law of Congress. Mississippi r. Johnson, 4 Wallace, 475;
Bates r. Taylor, 11 S. W. Rep., 266.
2 Powers as Commander in Okie/.— As Commander in Chief he is authorized to direct
the movements of the land and naval forces placed by law at his command, and to
employ them in the manner he may deem most effectual to harass and conquer and
subdue the enemy. He may invade the hostile country and subject it to the sover-
eignty and authority of the United States. But his conquests do not enlarge the
boundaries of this Union, nor extend the operations of our institutions and laws
beyond the limits before assigned to them by the legislative power. Fleming r. Page,
9 How., 603, 615. The power of command and control reserved by the Crown was
5
6 MILITARY LAWS OF THE UNITED STATES.
The cabinet, of the principal officer in each of the Executive Depart-
ments upon any subject relating to the duties of their
The pardoning respective offices, and he shall have power to grant re-
prieves and pardons for offenses against the United States,
except in cases of impeachment.1 Constitution, Art. 77,
sec. 2.
placed by the Constitution in the hands of the President. Street v. U. S., 24 Ct. Cls.,
230; 25, ibid, 515, 113, U. S., 299. See, also, the chapter entitled THE EMPLOYMENT
OP MILITARY FORCE. „
Power to establish rules and regulations.— The power of the Executive to establish
rules and regulations for the government of the Army is undoubted; The
power to establish implies, necessarily, the power to modify or repeal, or to create
anew. U. S. v. Eliason, 16 Pet., 291, 301. The Army Regulations, when sanctioned
by the President, has the force of law because it is done by him by the authority of
law. U. S. v. Freeman, 3 How., 556, 567.
May form military governments in occupied territory. -^-As an incident of the exercise
of belligerent rights, the President may form military and civil governments in the
territory of the enemy occupied by the armies of the United States. Cross v . Harri-
son, 16 How., 164, 190, 193. The Grapeshot, 19 Wall., 129, 132. He may also insti-
tute temporary governments within insurgent districts occupied by the national
forces. Texas v. White, 7 Wall., 700, 730.
May establish courts in occupied territory — Limitation. — The courts established or
sanctioned in Mexico, during the war, by the commanders of the United States forces,
were nothing more than the agents of the military power, to assist it in preserving
order in the conquered territory, and to protect the inhabitants in their persons and
property, while it was occupied by the American armies. They were subject to the
military power, and their decisions were under its control whenever the command-
ing officer thought proper to interfere. Neither the President nor any military officer
' can establish a court in a conquered country, and authorize it to decide upon the
rights of the United States, or of individuals in prize cases, nor to administer the
laws of nations. Jecker v. Montgomery, 13 How., 498, 515. The Grapeshot, 9 Wall.,
129, 132.
For authority to employ secret agents in time of war, see Totten v. U. S., 92 U. S.,
105, 107. For powers and duties of the Executive in connection with the Army, the
Militia, and the Army Regulations, etc., see the chapters so entitled.
The constitutional power of the President to command the Army and Navy, and
of Congress "to make rules for the government and regulation of the land and naval
forces" are distinct; the President can not, by military orders, evade the legislative
regulations; Congress can not, by rules and regulations, impair the authority of the
President as Commander in Chief. Swaim v. U. S., 28 Ct. Cls., 173. When a law
is passed for the regulation of the Army, which does not impair the efficiency of the
President as Commander in Chief, he becomes, as to that law, an executive officer",
and is limited in the discharge of his duties by the statute. McBlair v. U. S., 19
ibid., 528.
1 The pardoning power. — A pardon is an act of grace proceeding from the power
intrusted with the execution of the laws, which exempts the individual on whom it
is bestowed from the punishment the law inflicts for a crime he has committed. It
is the private though official act of the executive magistrate, delivered to the indi-
vidual for whose benefit it is intended, and not communicated officially to the court.
U. S. v. Wilson, 7 Pet., 150, 161; Coke, 3d Inst., 233. The power which the Consti-
tution confers upon the President to grant pardons can not be controlled or limited,
in any manner, by Congress. Ex parte Garland, 4 Wall., 333, 380; U. S. v. Klein,
13 Wall., 128, 147; IV Opin. Att. Gen., 458; 19 ibid., 476.
Delivery and acceptance. — The pardon is a private though official act. It is official
in that it is the act of the Executive; it is private in that it is delivered to the indi-
vidual and not to the court. It must be pleaded, or brought officially to the knowl-
edge of the court, in order that the court may give it effect in any given case. There
is nothing peculiar in it to distinguish it from other acts It is a deed to the validity
of which delivery is essential, and the delivery is not complete without acceptance'.
It may be rejected by the person to whom it is tendered, and, if rejected, there is no
power in the court to force it upon the individual. U. S. v. Wilson, 7 Pet., 150.
Effects. -^Subject to exceptions therein provided, a pardon by the President restores
to ita recipient all rights of property lost by the offense pardoned, unless the prop-
MILITARY LAWS OF THE UNITED STATES. 7
3. The term of four years for which a President and J^g* office-
Vice-President shall be elected shall in all cases commence
on the 4th day of March next succeeding the day on which
the votes of the electors have been given.
4. In case of the removal of the President from office, .succession of
„,.,, . . .,.-,. "Vice- President.
or of his death, resignation, or inability to discharge the Constitution,
powers and duties of the said office, the same shall devolve
erty has, by judicial process, become vested in other perscns. Osborn v. U. S 91
U. S., 474; V Opin. Att. Gen., 532.
Power to mitigate and commute. — The President may, by an exercise of the pardon-
ing power, mitigate or commute a punishment imposed by any court of the United
States. Ex parte Wells, 18 How., 307; In re Ross, 140 U. S., 453. In mitigating the
sentence of a naval court-martial the President may substitute a suspension for a
term of years without pay for an absolute dismissal from the service; as suspension
is but an inferior degree of the same punishment. I Opin. Att. Gen., 433.
Conditional pardons. — The language of the Constitution is such that the power of
the President to pardon conditionally is not one of inference, but is conferred in
terms, the language being "to grant reprieves and pardons," which includes abso-
lute as well as conditional pardons. Under this power the President can grant a
conditional pardon to a person under sentence of death, offering to commute that
punishment into an imprisonment for life. If this is accepted by the convict he has
no right to contend that the pardon is absolute and the condition of it void Ex
parte Wells, 18 How., 307; Osborn v. U. S., 91 U. S., 474; U. S. v. Wilson, 7 Pet., 150.
When a pardon is granted with conditions annexed the conditions must be performed
before the pardon is of any effect. Waring v. U. S., 7 Ct. Cls., 501. One who claims
the benefit of a pardon must be held to strict compliance with its conditions. Haym
v. U. S. , 7 Ct. Cls. , 443 ; Scott v. U. S. , 8 ibid. , 457. The condition annexed to a pardon
must not be impossibte, unusual, or illegal; but it may, with the consent of the
prisoner, be any punishment recognized by the statutes, or by the common law as
enforced by the State. Lee v. Murphy, 22 Grat. (Va.), 789.
Time of exercise.— The President of the United States has the conditional power to
pardon as well before trial and conviction as afterwards; but it is a power only to be
exercised with reserve and for exceptional considerations. VI Opin. Att. Gen., 20;
1 ibid., 341; 2 ibid., 275; 5 ibid., 687; Ex parte Garland, 4 Wall., 333; Dominick v.
Davidson, 44 Ga., 457; 5 Blair v. Com., 25 Grat. (Va.), 850. It is competent for the
President to grant a pardon after the expiration of the term of sentence, thereby
relieving from consequential disabilities. Stetler's Case, 1 Phil., IX, 38; Com. v.
Bush, 2 Duv. (Ky.), 264.
Limitation upon trie pardoning power. — The Constitution gives to Congress the power
to dispose of the public property and to the President only the power to pardon
crimes; and the President, having no title to forfeited property, can not restore it,
though he may pardon the offense which caused the forfeiture. Property confiscated
by judgment to the United States is beyond the reach of executive clemency and is
absolutely national property. Knote v. U. S., 10 Ct. Cls., 397, 406; U. S. v. Six Lots
of Ground, 1 Woods, 234; Osborn v. U. S., 91 U. S., 474, 477.
Pleading. — A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance. * * * The pardon may possibly
apply to a different person or to a different crime. It may be absolute or conditional.
It may be controverted by the prosecutor and must be expounded by the court.
These circumstances combine to show that this, like any other deed, ought to be
brought before the court by plea, motion, or otherwise. U. S. v. Wilson, 7 Pet, 150,
161; Ex parte Reno, 66 Mo., 266. The recital of a specific, distinct offense, in a par-
don by the President, limits its operation to that offense, and such pardon does not
embrace any other offense for which separate penalties and punishments are pro-
vided. Ex parte Weimer, 8 Biss., C. Ct., 321. The conviction having been of two
offenses, and the pardon reciting only one, the pardon operates upon the offense
recited. State v. Foley, 15 Nev., 64.
Officers of the United States. — Any person occupying a position under the Federal
Government, conferred upon him' by a legally authorized election or appointment,
whose duties consist in the exercise of important public powers and trusts, as a part
of the regular administration of the Government, such duties being continuing and
permanent, not occasional or temporary, and prescribed by the Government or by a
8 MILITARY LAWS OF THE UNITED STATES.
on the Vice-President, and the Congress may by law pro-
vide for the case of removal, death, resignation, or inabil-
ity, both of the President and Vice-President, declaring
what officer shall then act as President, and such officer
shall act accordingly, until the disability be removed, or
a President shall be elected. Constitution, Art. //, sec. 1,
par. 6.
provision for 5. Tn case of removal, death, resignation, or inability of
»hoSSPvS!ancyboth the President and Vice-President of the United
ofSJdentaSd States, the Secretary of State, or if there be none, or in
in'!,' 19? Vs^^ case of his removal, death, resignation, or inability, then
the Secretary of the Treasury, or if there be none, or in
case of his removal, death, resignation, or inability, then
the Secretary of War, or if there be none, or in case of
his removal, death, resignation, or inability, then the
Attorney-General, or if there be none, or in case of his
superior officer, and whose compensation is paid out of the Treasury, is an officer of
the United States. U. S, t>. Hartwell, 6 Wallace, 385; U. S. v. Germaine, 99 U. S.,
508; U. S. v. Maurice, 2 Brock., 103. Unless one in the service of the United States
holds his office by virtue of an appointment made by one of the courts of justice or
heads of departments authorized by law to make such appointment, he is not, strictly
speaking, an officer of the United States. • U. S. v. Mouat, 124 U. S., 303; U. S. v.
Hendee, 124 U. S., 309; U. S. v. Smith, 124 U. S., 525. Noncommissioned officers
are not officers in the sense in which the latter term is generally used. Babbitt v.
U. S., 16 Ct. Cls., 202.
Appointments to office. — Appointments provided for by act of Congress, merely in
general terms, must be made by and with the advice and consent of the Senate. VI
Opin. Att. Gen., 1. When a person has been nominated to an office by the Presi-
dent, confirmed by the Senate, and his commission has been signed by the President,
and the seal of the United States affixed thereto, his appointment to that office is
complete. Congress may provide *• that certain acts shall be done by the
appointee before he shall enter on the possession of the office under the appointment.
These acts then become conditions precedent to the complete investiture of the office;
but .they are to be performed by the appointee, not by the Executive; all that the
Executive ran do to invest the person with his office has been completed when the
commission has been signed and sealed, and when the person has performed the
required condition, his title to enter' on the possession of the office is also complete.
I'. S. r. Le Baron, 19 How., 73, 78; U. S. v. Stewart, ibid., 79; Marbury v. Madison,
1 Cranch, 137.
J'otcei'8 of officers. — All the officers of the Government, from the highest to the lowest,
are but agents with delegated powers, and if they act beyond the scope of their dele-
gated powers their acts do not bind the principal. U. S. v. Maxwell Grant, 21 Fed.
Rep., 19. An officer can only bind the Government by acts which come within a
just exercise of his official power. Hunter v. U. S., 5 Pet., 173, 178; The Floyd
Acceptances, 7 Wall., 666; State v. Hastings, 12 Wis., 596. It is a question of law
for the court whether an act is a part of the official duty of a public officer. U. S. v.
Buchanan, 8 How., 83. Every public officer is required to perform all duties which
are strictly official, although they may be required by laws passed after he comes into
office, and may be cumulative upon his original duties, and although his compensa-
tion therefor be wholly inadequate. In such case he must look to the bounty of Con-
gress for any additional reward. Andrews v. U. S. , 2 Story, 202. An officer is bound
to use that care and diligence in the discharge of his duties that a conscientious and
prudent man, acting under a just sense of his obligations, would exercise under the
circumstances of a particular case, and if he fails and neglects to do so he is culpable.
U. S. r. Baldridge, 11 Fed. Rep., 552.
Presumptions as to official nets.— The acts of an officer to whom a public duty is
assigned, within the sphere of that duty, are prima facie within his power. U. S. v.
Arredondo, 6 Pet, 691; U. S. v. Clarke, 8 ibid., 436, 452; Percheman v. U. S., 7 ibid.,
51; Delassus r. U. S.; 9 ibid., 117, 134; Strother v. Lucas, 12 ibid., 410, 438; U. S. v.
MILITAEY LAWS OF THE UNITED STATES. 9
removal, death, resignation, or inability, then the Post-
master-General, or if there be none, or in case of his re-
moval, death, resignation, or inability, then the Secretary
of the Navy, or if there be none, or in case of his removal,
death, resignation, or inability, then the Secretary of the
Interior, shall act as President until the disability of the
President or Vice-President is removed or a President shall
be elected: Provided, That whenever the powers and duties Proviso.
of the office of President of the United States shall devolve
upon an}r of the persons named herein, if Congress be not
then in session, or if it would not meet in accordance with
law within twenty days thereafter, it shall be the duty of
the person upon whom said powers and duties shall de-
volve to issue a proclamation convening Congress in extra-
ordinary session, giving twenty days' notice of the time
of meeting. Act of January 19, 1886, %4 Stat. Z., L
Peralta, 19 How., 343, 347. When a particular functionary is clothed with the duty
of deciding a certain question of fact, his decision, in the absence of fraud, is conclu-
sive. Logan r. The County, 16 Wall., 6. He who alleges that an officer intrusted
with important duty has violated his instructions must show it. The courts ought
to require very full proof that an officer has transcended his powers before they so
determine. U. S. r. Peralta, 19 How., 343, 347; Delassus v. U. S., 9 Pet., 117, 134.
AVhen a public officer is to do any act on proof of certain facts, of the competency
and sufficiency of which he is to judge, it is to be presumed, from the doing of the
act, that the proof was regularly and satisfactorily made, and its sufficiency is not
subject to reexamination. Phil, and Tren. R. R. Co. v. Stimpson, 14 Pet., 448.
Tenure. — The power to appoint includes the power to remove, when the Constitu-
tion has not otherwise provided, and when the laws of Congress have not fixed
a tenure of office. Ex parte Henneri, 13 Pet., 230; Parsons v. U. S., 167 U. S., 324;
U. S. v. A very, Deady, 204. When Congress, by law, vests the appointment of infe-
rior officers in the heads of Departments, it may limit and restrict the power of
removal as it deems best for the public interests. U. S. v. Perkins, 116 U. S., 483.
Resignation. — That a public office may be vacated by resignation is established by
long and familiar practice, and is recognized by express provision of law. Nor can
there be any doubt that a resignation may be effected by the concurrence of the
officer and the appointing power; its essential elements are an intent to resign on the
one side and an acceptance on the other. It may be either in writing or by parol,
expressly or by implication. To perfect a resignation nothing more is necessary
than that the proper authority manifest in some way its acceptance of the offer to
resign. It then becomes effectual, and operates to relieve the incumbent either
immediately or on the day specially fixed according to its terms. An offer to resign
is revocable prior to acceptance; after acceptance and before it has taken effect it
may be modified, or withdrawn by consent of both parties, but this control extends
no further. When a resignation once takes effect the official relations of the incum-
bent are ipso facto dissolved; he has no longer any right to, or hold upon, the office.
XIV Opin. Att. Gen., 259.
Removal. — In the absence of all constitutional provision or statutory regulation, it
would seem to be a sound and necessary rule to consider the power of removal as
incident to the power of appointment. In re Hennen, 13 Pet., 230, 259. It was the
purpose of Congress, in the repeal of the tenure of office sections of the Revised
Statutes (sees. 1767-1775, Rev. Stat., repealed by act of March 3, 1887, 24 Stat. L.,
500), to again concede to the President the power of removal, if taken from him by
the original tenure of office act, and, by reason of the repeal, to thereby enable him
to remove an officer when in his discretion he regards it for the public good, although
the term of office may have been limited by the words of the statute creating the
466, 601, and Blake v. U. S., 103 U. S., 227.
10 MILITARY LAWS OF THE UNITED STATES.
legibility. 6 The preceding section shall only be held to describe
and apply to such officers as shall have been appointed by
the advice and consent of the Senate to the offices therein
named, and such as are eligible to the office of President
under the Constitution, and not under impeachment by
the House of Representatives of the United States at the
time the powers and duties of the office shall devolve upon
them respectively.1 Section #, ibid.
Treatymaki g 7. jje shall have power, by and with the advice and con-
sent of the Senate, to make treaties, provided two-thirds
of the Senators present concur; and he shall nominate,
Appoint! ngand by and with the advice and consent of the Senate,
shall appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other offi-
cers of the United States, whose appointments are not
herein otherwise provided for, and which shall be estab-
lished by law; but the Congress may by law vest the
appointment of such inferior officers, as they think proper,
in the President alone, in the courts of law, or in the heads
of Departments.2 Constitution, Art. II, sec. %, par. 2.
8. The President shall have power to fill up all vacancies
that may happen duing the recess of the Senate, by grant-
ing commissions which shall expire at the end of their next
session. Ibid., par. 3.
Recess ap- 9. The President is authorized to fill all vacancies' which
may happen during the recess of the Senate by reason of
death, or resignation, or expiration of term of office, by
granting commissions which shall expire at the end of their
s \?aii 2p 1Sol s' nex* sessi°n thereafter, and if no appointment, by and
3 vpi66p 1769' "' w^n ^ne advice and consent of the Senate, is made to an
office so vacant or temporarily filled during such next ses-
sion of the Senate, the office shall remain in abeyance,
1 Sections 146, 147, 148, and 149 of the Revised Statutes were repealed by the act
of January 19, 1886 (24 Stat. L., 1).
2 Public office. — An office is a public station, or employment, conferred by the
appointment of Government. The term embraces the ideas of tenure, emolument,
and duties. The duties are continuing and permanent, not occasional and
transitory, and are defined by rules prescribed by Government and not by contract.
* * * A Government office is different from a Government contract. The latter,
from its nature, is necessarily limited in its duration and specific in its objects. The
terms agreed upon define the rights and obligations of both parties, and neither may
depart from them without the assent of the other. U. S. v. Hartwell, 6 Wall., 385,
394; U. S. v. Maurice, 2 Brockenbrough, 103. A public officer is the incumbent of
an office "who exercises continuously, and as a part of the regular and permanent
administration of the Government, its public powers, trusts, and duties." Sheboy-
gan Co. v. Parker, 3 Wall., 93, 96. Unless a person in the service of the Government
holds his place by virtue of an appointment by the President, or of one of the courts
of justice or heads of Departments authorized by law to make such an appointment,
he is not, strictly speaking, an officer of the United States, U. S. v. Mouat, 124 U. S.,
303, 307; U. S. v. Germaine, 99 U. S., 508, 510.
MILITARY LAWS OF THE UNITED STATES. H
without any salary, fees, or emoluments attached thereto,
until it is filled by appointment thereto by and with the
advice and consent of the Senate; and during such time all
the powers and duties belonging to such office shall be ,
exercised by such other officer as may by law exercise such
powers and duties in case of a vacancy in such office.1
10. The President is authorized to make out and deliver, commissions,
after the adjournment of the Senate, commissions for alli^, s.Vv. HP'
officers whose appointments have been advised and con- sec. 1773, E. s.
sented to by the Senate.1
11. Whenever the President, without the advice and Notification of
consent of the Senate, designates, authorizes, or employs s e'er e tary8 0°
any person to perform the duties of any office, he shall Mar. 2,'i867, c
forthwith notify the Secretary of the Treasur}7 thereof, and 431!
the Secretary of the Treasury shall thereupon communicate
such notice to all the proper accounting and disbursing
officers of his Department. The Secretary of the Senate Notification of
shall, at the close of each session thereof, deliver to the JSESSJ1 e?c!, r£
Secretary of the Treasury, and to each of the Assistant lreasuryary
Secretaries of the Treasury, and to each of the Auditors, m^.'^v^illp.
and to each of the Comptrollers in the Treasury, and tolec. 1775, B. s.
the Treasurer, and to the Register of the Treasury, a full
and complete list, duly certified, of all the persons who
have been nominated to and rejected by the Senate during
such session, and a like list of all the offices to which nomi-
nations have been made and not confirmed and filled at
such session.
lFor statutory requirements in respect to commissions to military officers see the
chapter entitled COMMISSIONED OFFICERS.
CHAJPTER II.
PROVISIONS APPLICABLE TO THE SEVERAL EXECUTIVE
DEPARTMENTS.
Par.
12. Application of title.
13-19. Temporary vacancies; how filled.
20. Regulations for Executive Depart-
ments.
21-24. Chief clerks; disbursing clerks.
25-31 . Appointment of clerks ; restric-
tions.
32-37. Classification of clerks.
38-42. Salaries.
43-45. Leaves of absence; sick leaves.
46-48. Legal holidays.
49-51. Administration of oaths.
52, 53. Hours of labor in Executive De-
ments.
54-60. Contingent funds.
61. Requisitions for funds; advances,
warrants.
Par.
62-78. Estimates.
79-81. Procurement of supplies; con-
tracts and purchases.
82. Purchase of stationery.
83-85. Inspection of fuel in the District
of Columbia.
86-91. Annual reports.
92. The Official Register.
93-102. Miscellaneous requirements.
103-105. Destruction, forgery, etc., of
public records.
106, 107. Disposition of useless papers.
108. Books and papers to be open to ex-
amination of accounting officers of
the Treasury.
109. Departmental libraries.
110-116. Prosecution of claims.
12. The provisions of this title shall apply to the follow-
ing Executive Departments:
First. The Department of State.
Second. The Department of War.
Third. The Department of the Treasury.
Fourth. The Department of Justice.
Fifth. The Post-Office Department.
Sixth. The Department of the Navy.
Seventh. The Department of the Interior.
The word " Department" when used alone in this title,
and titles five, six, seven, eight, nine, ten, and eleven,
means one of the Executive Departments enumerated in
the preceding section.1
The titles so numbered in the Revised Statutes are the ones above referred to.
12
Application of
provisions of this
title.
Sec. 158, K. S.
Sec. 159, K. S.
Word "Depart-
ment."
MILITARY LAWS OF THE UNITED STATES. 13
TEMPORARY VACANCIES.
Par.
17. Restriction on temporary appoint-
ments.
18. The same.
19. No extra compensation for temporary
officers.
Par.
13. First assistant to act.
14. Vacancies in subordinate offices.
15. Discretionary authority of the Presi-
dent.
16. General Commanding Army and
heads of bureaus to act as Secre-
tary of War.
13. In case of the death, resignation, absence, or sick-
ness of the head of any Department, the first or solemj^23 im c
assistant thereof shall, unless otherwise directed by the ^7, s. i, V. 15,' p.
President, as provided by section one hundred and seventy- Se<>- 177' K- s-
nine,1 perform the duties of such head until a successor is
appointed, or such absence or sickness shall cease.
14. In case of the death, resignation, absence, or sick- snbSrdtnate^f1-
ness of the chief of any Bureau, or of any officer thereof, ficje^y23 1868 c
whose appointment is not vested in the head of the Depart- ^ s- 2> v- 16> P-
ment, the assistant or deputy of such chief or of such Sec- 178> B- s-
officer, or if there be none, then the chief clerk of such
Bureau, shall, unless otherwise directed by the President,
as provided by section one hundred and seventy-nine, per-
form the duties of such chief or of such officer until a suc-
cessor is appointed or such absence or sickness shall cease.2
+ ~ T P ^ ^ - .i j- Discretionary
15. In anv of the cases mentioned in the two preceding authority of the
s xu j xu x- v, -i President.
sections,3 except the death, resignation, absence, or sick- July 23, ises, c.
ness of the Attorney-General, the President may, in hisies'-, 'jun'e '22,
T ^ Ai_ • i j- ^ t. J £ Ai_ T^ 1870, C. 150, s. 2, v.
discretion, authorize and direct the head of any other De-i6,p.i62.
partment or any other officer in either Department whose
appointment is vested in the President, by and with the
advice and consent of the Senate, to perform the duties of
the vacant office until a successor is appointed, or the sick-
ness or absence of the incumbent shall cease.*
16. The President may authorize and direct the Com-
manding General of the Army or the chief of any military
Bureau of the War Department to perform the duties of
the Secretary of War under the provisions of section one|fa^retary
hundred and seventy-nine of the Revised Statutes, and 22^pu^|; 1882> v-
section twelve hundred and twenty-two of the Revised
Statutes shall not be held or taken to apply to the officer
1 Section 179, Revised Statutes, paragraph 15, post:
2 See XIX Opin. Att. Gen., 503.
3 Sections 177 and 178, Revised Statutes, paragraphs 13 and 14, ante.
4 The vacancy occasioned by the retirement of the head of a staff department may
be temporarily filled by an ad interim appointment, under tlje authority conferred, by
section 179. Revised Statutes. XIX Opin. Att. Gen., 500.
14 MILITARY LAWS OF THE UNITED STATES.
so designated by reason of his temporarily performing such
duties. Act of August 5, 1888 (88 Stat. Z., 838).
Temporary ap- 17 A vacancv occasioned by death or resignation must
pointments lim- J 1,1 T j.'
fted^ to thirty not be temporarily tilled under the three preceding sections
ajyuiy23,i868,c. for a longer period than thirty days. Act of February 6,
227, s. 3, v. 15, P. ion-f (toft gfaf £ 733) 168; Feb. 6, 1891, v. 26, p. 733.
Restriction on igt ]^o temporary appointment, designation, or assign-
pointments. ment of one officer to perform the duties of another, in the
July 23, 1868, c. 1111
227, s. 2, v. 15, p. cases covered by sections one hundred and seventy-seven
Sec. isi, B. s. and one hundred and seventy-eight,1 shall be made other-
wise than as provided by those sections, except to fill a
vacancy happening during a recess of the Senate.
Extra compen- 19. An officer performing the duties of another office,
sation disal- , ., . , , ,. i_ j i
lowed. during1 a vacancv, as authorized by sections one hundred
July 23, 1868, c. J ' . , , , . , , rT.
227, s. 3, v. 15, p. and seventy-seven, one hundred and seventy-eight [Kev.
s'ec. isa, R. s. Stat.], and one hundred and seventy-nine [ibid.], is not by
reason thereof entitled to any other compensation than that
attached to his proper office.
REGULATIONS FOR EXECUTIVE DEPARTMENTS.
re Diffiotmental 20- The head of each Department is authorized to pre-
4 viy228*ie' t' scri°e regulations, not inconsistent with law, for the gov-
is.nsg.cavv. i, ernmentof his Department, the conduct of its officers and
49^9seCpt7' 2' 1789' clerks, the distribution "and performance of its business,
June I' 1872' ^ an(* ^e custody, use, and preservation of the records, pa-
A35rV3o7'i798^8c'Pers' an(^ Pr°Perty appertaining to it.2
35, v. 1, p. 553'; June 22, 1870, c. 150, s. 8, v. 16, p. 163; Mar. 3, 1849, c. 108, v. 9, p. 395. Sec. 161, R. S.
Sections 177 and 178. Revised Statutes: paragraphs 13 and 14, ante.
a The President speaks and acts through the heads of the several Executive De-
partments in relation to subjects which appertain to their respective duties. Wilcox
r. Jackson, 13 Pet, 498, 513; Wolsey v. Chapman, 101 U. S., 755. It is the general
theory of departmental administration that the heads of the Executive Departments
are the executors of the will of the President. X Opin. Att. Gen., 527. As a gen-
eral rule the direction of the President is to be presumed in all instructions and
orders issuing from the competent Department. VII id., 453. Official instructions
issued by the heads of the several Executive Departments, civil and military, within
their respective jurisdictions, are valid and lawful, without containing express ref-
erence to the direction of the President. VII id. , 453. The duties of the heads of the
several- Executive Departments are derived, in part, from the Constitution, and are,
in part, imposed by statute. In the execution of the former they act as the repre-
sentatives of the President, to whom they are responsible for their correct perform-
ance. For duties imposed by statute their responsibility is to the legislature, and
they are controlled in all matters relating to performance by such statutory rules
and regulations as Congress may see fit to impose. (See Mar bury v. Madison, 1 Cr.,
137, and par. 1, note 1.)
The executive power is vested in a President, and so far as his powers are derived
from the Constitution he is beyond the reach of any other Department, except in
the mode prescribed by the Constitution through the impeaching power, but it by
no means follows that every officer in every branch of that Department is under the
exclusive direction of the President, * * There are certain political duties
imposed upon many officers in the Executive Department the discharge of which is
under the direction of the President, but it would be an alarming doctrine that
Congress can not impose upon any executive officer any duty they may think
MILITARY LAWS OF THE UNITED STATES.
15
CHIEF CLERKS; DISBURSING CLERKS.
Par.
21. Duties of chief clerks.
22. To distribute clerical duties; monthly
reports.
Par.
23. Action on report.
24. Disbursing clerks; duties and com-
pensation.
21. Each chief clerk in the several Departments, and chief clerks to
Bureaus, and other offices connected with the Departments, di
proper, which is not repugnant to any rights secured and protected by the Con-
stitution, and in such cases the duty and responsibility grow out of and are subject
to the control of the law and not to the direction of the President, and this is em-
phatically the case where the duty is of a ministerial character. Kendall v. U. S.,
12 Pet., 524, 610. See, also, the title Army Regulations in the chapter entitled THE
REVISED STATUTES; THE STATUTES AT LARGE; THE ARMY REGULATIONS.
Ministerial and discretionary duties. — The duties performed by the heads of the sev-
eral Executive Departments are either ministerial or discretionary or quasi judicial
in character. "The question whether the legality of an act of the head of a Depart-
ment be examinable in a court of justice or not must always depend on the nature of
the act. By the Constitution of the United States the President is invested with cer-
tain important political powers in the exercise of which he is to use his own discre-
tion, and is accountable only to his country in his political character and to his own
conscience. To aid him in the performance of these duties he is authorized to appoint
certain officers, who act by his authority and in conformity to his orders. In such
cases their acts are his acts, and, whatever opinion may be entertained of the manner
in which Executive discretion may be used, still there exists and can exist no power
to control their discretion. The subjects are political. They respect the nation, not
individual rights, and being intrusted to the Executive, the decision of the Execu-
tive is conclusive. The conclusion is that where the heads of Departments
are the political or confidential agents of the Executive, merely to execute the will
of the President, nothing can be more perfectly clear than that their acts are only
politically examinable. Marbury v. Madison, 1 Cr., 137, 166; Kendall v. U. S., 12
Pet., 524, 611; Decatur v. Paulding, 14 Pet., 497, 515. We are not aware of any case
in England or this country in which it has been held that a public officer, acting to
the best of his judgment and from a sense of duty," in a matter of account with an
individual, has been held liable for an error of judgment. * * * A public officer
is not liable to an action if he falls into error in a case where the act to be done is not
merely a ministerial one but is one in relation to which it is his duty to exercise
judgment and discretion, even though an individual may suffer by his mistake. A
contrary principle would indeed be pregnant with the greatest mischiefs. Kendall
v. Stokes, 3 How., 87, 98; Gould v. Hammond, 1 Me All., 235, 243; Noble v. Union
River Logging Co., 147 U. S., 165, 171.
A ministerial duty the performance of which may in proper cases be required of
the head of a Department by judicial process is one in respect to which nothing is
left to discretion. It is a simple, definite duty, arising under conditions admitted or
proved to exist and imposed by law. Mississippi v. Johnson, 4 Wall., 475, 498; Mar-
bury v. Madison, 1 Cr., 137; Kendall v. Stockton, 12 Pet., 524. As a mandamus can
only be granted because there is no other adequate remedy at law, an action for dam-
ages can not be afterwards sustained for the same cause of action, the two being
inconsistent. Kendall v. Stokes, 3 How., 87, 102.
Liability for damages. — The executive officers of the United States are personally
liable at law for damages, in the ordinary forms of action, for illegal official or min-
isterial acts or omissions to the injury of an individual. Marbury v. Madison, 1 Cr.,
137, 166; Gaines v. Thompson, 7 Wall., 347; Amy v. The Supervisors, 11 Wall., 136,
137, 166. Where a ministerial officer acts in good faith he is not liable in exemplary
damages for an injury done, but he can claim no further exemption where his acts
are clearly against the law. Tracy v. Swartwout, 10 Pet., 80.
Measure of damages. — Where the law requires absolutely a ministerial act to be
done by a public officer, and he neglects or refuses to do such act, he may be com-
pelled to respond in damages to the extent of the injury arising from his conduct
A mistake as to his duty and honest intentions will not excuse the offender. Amy
v. The Supervisors, 11 Wall., 136. Where an action is brought for an injury done in
the discharge of an official duty, the damages are measured generally by the extent
of that injury. Bispham v. Taylor, 2 McLean, 408. Pierce v. Strickland, 2 Story,
"92. For general provisions respecting .public officer, see Chapter IV and par. 4,
.ante.
16 MILITARY LAW8 OF THE UNITED STATES.
2o£usgif V18?'?' shall supervise, under the direction of his immediate supe-
B rior, the duties of the other clerks therein, and see that
Sec. 17«>, K. ».
they are faithfully performed.1
chief clerks to 22. Each chief clerk shall take care, from time to time,
ticket?.111 "that the duties of the other clerks are distributed with
Aug. 26, 1842, c. . ., , . , , ., , ,
202, s. is, v. 5, p. equality and uniformity, according, to the nature or the
sec. 174, B. s. case. He shall revise such distribution from time to time,
for the purpose of correcting any tendency to undue accu-
mulation or reduction of duties, whether arising from
individual negligence or incapacity, or from increase or
diminution of particular kinds of business. And he shall
report monthly to his superior officer any existing defect
that he may be aware of in the arrangement or dispatch of
business.
Duty of chief 23. Each head of a Department, chief of a Bureau, or
on receipt of re- L . . , .
port.- other superior officer, shall, upon receiving each monthlv
Aug. 26, 1842, c. i • i • • i j
202, s. 13, v. 5, p. report of his chief clerk, rendered pursuant to the preced-
s'ec. no, B. s. ing section, examine the facts stated therein, and take
such measures, in the exercise of the powers conferred
upon him by law, as may be necessary and proper to amend
any existing defects in the arrangement or dispatch of
business disclosed by such report.
Disbursing 24. The disbursing clerks authorized by law in the
clMar.' 3, 1853, c. several Departments shall be appointed by the heads of
209,82n;VMarp3', the respective Departments, from clerks of the fourth
10, '^'*Mar. class; and shall each give a bond to the United States for
J! the faithful discharge of the duties of his office according
S* to law in such amount as shall be directed by the Secretary
of the Treasury, and with sureties to the satisfaction of
the Solicitor of the Treasury ; and shall from time to time
renew, strengthen, and increase his official bond, as the
compensation. Secretary of the Treasury may direct. Each disbursing
clerk, except the disbursing clerk of the Treasury Depart-
ment, must, when directed so to do by the head of the
Department, superintend the building occupied by his
Department. Each disbursing clerk is entitled to receive,
in compensation for his services in disbursing, such sum in
addition to his salary as a clerk of the fourth class as shall
make his whole annual compensation two thousand dollars
a year.
1 For authority of chief clerks to administer oaths of office, see the act of August
29, 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk
of the War Department, see paragraphs 22, 23, and 134 post.
MILITARY LAWS OF THE UNITED STATES.
17
APPOINTMENT OF CLERKS; RESTRICTIONS ON APPOINTMENT.
Par.
29. Voluntary service prohibited.
30. Civil pension roll prohibited.
31. Payment of incapacitated persons.
oniyr°pm
Par.
25. Authority to employ.
26. Restriction on employment.
27. Payments from specific appropria-
tions.
28. Employees elsewhere not to be de-
tailed in Washington.
25. Each head of a Department is authorized to emplo}T Authority to
in his Department such number of clerks of the several and °othere em-
classes recognized by law, and such messengers, assistant Mar. 3, 1875, c.
. / . 129, v. 18, pp. 360,
messengers, copvists, watchmen, laborers, and other em-36i, 365; c. 130,
' ss. 2, 3, v. 18, p.
ployees, and at such rates or compensation, respectively, 399.
as may be appropriated for by Congress from year to year. *
26. The executive officers of the Government are hereby Employing
. clerks, etc., be-
prohibited from employing any clerk, agent, engineer, yond provisions
draughtsman, messenger watchman, laborer, or other em- sec. 5, Aag.tt,
ployee, in any of the Executive Departments in the city of
Washington, or elsewhere beyond provision made by law.2
Sec. 5, act of August 15, 1876 (19 Stat. Z., 169).
27. No civil officer, clerk, draughtsman, copyist, mes-
senger, assistant messenger, mechanic, watchman, laborer,
or other employee shall, after the first day of October next, i882,%.422fpg255.'
be employed in any of the Executive Departments, or sub-
ordinate bureaus or offices thereof at the seat of Govern-
ment, except only at such rates and in such numbers,
respectively, as may be specifically appropriated for by
Congress for such clerical and other personal services for
each fiscal year; and no civil officer, clerk, draughtsman,
copyist, messenger, assistant messenger, mechanic, watch-
man, laborer, or other employee shall hereafter be employed
at the seat of Government in any Executive Department
or subordinate bureau or office thereof or be paid from any
appropriation made for contingent expenses, or for any
specific or general purpose, unless such employment is
authorized and payment therefor specifically provided in
the law granting the appropriation, and then only for
services actually rendered in connection with and for the
purposes of the appropriation from which payment is
made, and at the rate of compensation usual and proper for
such services.
*For authority of chief clerks to administer oaths of office, see the act of August
29. 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk
of the War Department, see paragraphs 22, 23, and 134 post.
2 For. rules regulating the procurement of services in the several Executive Depart-
ments see, in Chapter IV, the title The Civil Service.
22924—08 2
18 MILITARY LAWS OF THE UNITED STATES.
civil officers, 28. After the first day of October next section one hun-
lmpioyed!nottodredand seventy -two of the Revised Statutes, and all other
be detailed for, J n , . . . ,. . . „
duty in the Dis- laws and parts of laws inconsistent with the provisions or
trict of Colum- , ~. . . ,,
wa. this act, and all laws and parts of laws authorizing the
R. S. 172 re- . . ,
pealed. employment of officers, clerks, draughtsmen, copyists,
messengers, assistant messengers, mechanics, watchmen,
laborers, or other employees at a different rate of pay or
in excess of the numbers authorized by appropriations
made by Congress, be, and they are hereby, repealed; and
thereafter all details of civil officers, clerks, or other sub-
ordinate employees from places outside of the District of
Columbia for duty within the District of Columbia, except
temporary details for duty connected with their respective
offices, be, and are hereby, -prohibited; and thereafter all
moneys accruing from lapsed salaries, or from unused ap-
propriations for salaries, shall be covered into the Treasury.1
Sec. 4, act of August 5, 1882 (%<2 Stat. Z., 255).
vo^nte^Ter?- 29< Hereafter no Department or officer of the United
1CMay i 1874 v States shall accept voluntary service for the Government
23, p. 17. or employ personal service in excess of that authorized by
law, except in cases of sudden emergency involving the
loss of human life or the destruction of property. Act of
May 1, 1874 (83 Stat. Z., 17).
wm^roEfbited1 ^' ^e establishment of a civil pension roll, or an hon-
30Fpb846ll8"'v' orabl6 service roll, or the exemption of any of the officers,
clerks, and persons in the public service from the existing
laws respecting employment in such service is hereby pro-
hibited.2 Act of February % 1899 (30 Stat. Z., 846).
pereon?enperma- «*1. The appropriations herein made for the officers,
£ted.y incapaci" clerks, and persons employed in the public service shall
JThe act of August 5, 1882 (22 Stat. L. 255), contained the following provisos:
"That the sums herein specifically appropriated for clerical or other force hereto-
fore paid for out of general or specific appropriations may be used by the several
heads of Departments to pay such force until the said several heads of Departments
shall have adjusted the said force in accordance with the provisions of this act; and
such adjustment shall be effected before October first, eighteen hundred and eighty-
two. And in making such adjustment the employees herein provided for shall, as
far as may be consistent with the interests of the service, be apportioned among the
several States and Territories according to population: Provided further, That any
person performing duty in any capacity as officer, clerk, or otherwise in any Depart-
ment at the date of the passage of this act who has heretofore been paid from any
appropriation made for contingent expenses or for any contingent or general purpose,
and whose office or place is specifically provided for herein, under the direction of
the head of that Department, may be continued in such office, clerkship, or employ-
ment without a new appointment thereto, but shall be charged to the quotas of the
several States and Territories from which they are respectively appointed, and nothing
herein shall be construed to repeal section 166 of the Revised Statutes of the United
States." See also 3 Dig. Dec. 2nd Compt., par. 82.
2 Section 2 of -the act of June 2, 1900 (31 Stat. L., 261 ), contained a similar require-
ment.
MILITARY LAWS OF THE UNITED STATES. 19
not be available for the compensation of any persons per- Mar. 3, 1901, v.
manently incapacitated for performing such service.131
Act of March 3, 1901 (31 Stat. Z., 1009).
CLASSIFICATION OF CLKRKS.
Par.
Par.
32. Four classes.
33. Examination.
34. Employment of women.
32. The clerks in the Departments shall be arranged
four classes, distinguished as the first, second, third, and c1^' 3 1353
35. Distribution.
36. Keduction to lower grade.
37. Preference in reduction.
f nil vr h (Aft «<SP« 77» s- 3> v- 1°' P- 2°9; Mar- 3- 1855, c. 175, s. 4, v. o, p. 669;
Aug. 15, 1876, c. 287, s. 3, v. 19, p. 169. Sec. 1W,R. S.
33. No clerk shall be appointed in any Department in
either of the four classes above designated until he has ia i8>
been examined and found qualified by a board of three c^75t8.4,v.io, p.
examiners, to consist of the chief of the Bureau or office Sec- 16*' E- s-
into which such clerk is to be appointed and two other
clerks to be selected by the head of the Department.2
34. Women may, in the discretion of the head of any clerkships
J 7 . / open to women.
Department, be appointed to any ot the clerkships therein 0 July 12. i8J°. c.
, . . 251, s. 2, v. 16, pp.
authorized bv law, upon the same requisites and condi- ^ 25o- _
» A Sec. loo, It. S.
tions, and with the same compensations, as are prescribed
for men.
35. Each head of a Department may, from time to time, cle^ribution o£
alter the distribution among the various bureaus and offices 18^%3'2^Iay1TO'
of his Department, of the clerks and other employees Sec.iee, R. s.
allowed by law, except such clerks or employees as may be
required by law to be exclusively engaged upon some spe-
cific work, as he may find it necessary and proper to do,
but all details hereunder shall be made by written order
of the head of the Department, and in no case be for a
period of time exceeding one hundred and twenty days:
Provided, That details so made may, on expiration, be
renewed from time to time by written order of the head
of the Department, in each particular case, for periods
of not exceeding one hundred and twenty days. All
details heretofore made are hereby revoked, but may be
renewed as provided herein. Sec. 3, act of May 28, 1896
(29 Stat. Z., 179).
'The acts of February 24, 1899 (30 Stat. L., 846), and April 17, 1900 (31 ibid., 134),
contained the same requirement.
2 For rules regulating appointments in the several Executive Departments in the
city of Washington and elsewhere, see the title The Civil Service in the chapter
entitled PROVISIONS APPLICABLE TO THE SEVERAL CLASSES OF OFFICERS. See also para-
graph 25 ante.
20 MILITARY LAWS OF THE UNITED STATES.
Reduction to 36. Whenever, in the judgment of the head of any
Aug. IB, 1876, Department the duties assigned to a clerk of one class can
be as well performed by a clerk of a lower class or by a
female clerk, it shall be lawful for him to diminish the
number of clerks of the higher grade and increase the num-
ber of the clerks of .the lower grade within the limit of
the total appropriation for such clerical service. Section
3, act of August 15, 1876 (19 Stat. Z., 169).
preference to 37. In making any reduction of force in any of the
d!ecreangd^aiiore! Executive Departments, the head of such Department
shall retain those persons who may be equally qualified
who have been honorably discharged from the military or
naval service of the United States,1 and the widows and
orphans of deceased soldiers and sailors. Ibid.
SALARIES.
Par. Par.
38. Rates of pay.
39. Temporary clerks.
40. Extra compensation prohibited.
41. The same.
42. Contingent funds not to be used.
salaries of per- 3g. The annual salaries of clerks and employees in the
sons employed in .. * J
thM^rp!rti853ntc' Departments, whose compensation is not otherwise pre-
,^82i\7-A10j ?2^' scribed, shall be as follows:
ISM, c. j>2, s. i, v'. First. To clerks of the fourth class, eighteen hundred
10, p. 276; Aug.
is, 1856, Res. is, dollars.
v. 11. p. 145;
208ys26 v8!^ p Second. To clerks of the third class, sixteen hundred
207;S'juiVy i?! dollars.
v^ 16,' PP: 230; Third. To clerks of the second class, fourteen hundred
Sec. 167, K. s. dollars.
Fourth. To clerks of the first class, twelve hundred dol-
lars.
Fifth. To the women employed in duties of a clerical
character, subordinate to those assigned to clerks of the
first class, including copyists and counters, or temporarily
employed to perform the duties of a clerk, nine hundred
dollars.
Sixth. To messengers, eight hundred and forty dollars.
Seventh. To assistant messengers, seven hundred and
twenty dollars.
1 To entitle an honorably discharged soldier to retention in the civil service in
preference to a civilian, he must be equally qualified, sec. 3, act of August 15, 1876
( 19 Stat, L., 169) , which must be determined by the head of the Department. Keim
v. U. S., 3$ Ct. Cls., 174.
MILITARY LAWS OF THE UNITED STATES. 21
Eighth. To laborers, seven hundred and twenty dollars.1
Ninth. T J watchmen , seven hundred and twenty dollars. 1
39. Except when a different compensation is expressly cl^|^nP°rary
prescribed by law, any clerk temporarily employed to c ^ ^ *&*>
perform the same or similar duties with those belonging to27|ec 168 K's
clerks of either class is entitled to the same salary as is
allowed to clerks of that class.
40. No money shall be paid to any clerk employed in sai^oTierks
either Department at an annual salary, as compensation prohibited-
for extra services, unless expressly authorized by law. 97M2Yi-3jumf'i7'
1844, c. 102, s. 1, v. 5, pp. 681, 687; Feb. 28, 1867, Res. 30, s. 2, v. 14, p. 569, s. 8. v/10, p. 209!
Sec. 170, B. S.
41. No allowance or compensation shall be made to any^J^J"
officer or clerk by reason of the discharge of duties which Jjjjjr
belong to any other officer or clerk in the same or anyla^g 26 1842
other Department; and no allowance or compensation shall s'sec7i764iB?s.
be made for any extra services whatever which any officer
or clerk may be required to perform, unless expressly
authorized by law.
42. No moneys appropriated for contingent, incidental, fu£dsntetcgenot
or miscellaneous purposes shall be expended or paid for empbioySiSlnt f°f
official or clerical compensation.2 ^jrSyifc. ISTO, s.
LEAVES OF ABSENCE; SICK LEAVES.
3, v. 16, p. 250.
Sec. 3682, R. S.
43. The head of any Department may grant thirty Leaves of ab-
day s' annual leave with pay in any one year to each clerk ^avrc£015' ^
or employee:3 And provided further, That where some
member of the immediate family of a clerk or employee
is afflicted with a contagious disease and requires the care
and attendance of such employee, or where his or her
presence in the Department would jeopardize the health
of fellow-clerks, and in exceptional and meritorious cases, sick ^aves.
JThe annual acts of appropriation since that of June 15, 1880 (21 Stat L., 237),
have contained provisions fixing the salaries of laborers and watchmen in the Execu-
tive Departments at $660 and of charwomen at $240. See section 2, act of April 17,
1900 (31 Stat. L., 133); see also Garlinger v. U. S., 30 Ct. Cls., p. 208, and Gordon v.
U. S., 31 ibid., 254.
2 Section 4 of the act of April 17, 1900 (31 Stat. L., 134), contains the requirement
that "the appropriations herein made for the officers, clerks, and persons employed
in the public service shall not be available for the compensation of persons perma-
nently incapacitated for performing such service."
The act of July 1, 1898 (30 Stat. L., 597), contained the requirement that "here-
after no allowance or compensation for clerks or secretaries of officials of the United
States retired from active service shall be authorized."
3 Under the above provision it is discretionary with the heads of the several Execu-
tive Departments to grant or refuse leave of absence, and their acts can not be
reviewed. Absence without leave is absence without pay; absence with leave is
subject to such conditions and limitations as may be imposed. Hurlbut v. U. b., 6(
Ct. Cls., 166.
22 MILITARY LAWS OF THE UNITED STATES.
where a clerk or employee is personally ill, and where to
limit the annual leave to thirty days in any one calendar
year would work peculiar hardship, it ma}T be extended,
in the discretion of the head of the Department, with pay,
not exceeding thirty days in any one case or in any one
calendar year.
This section shall not be construed to mean that so long
as a clerk or employee is borne upon the rolls of the De-
partment in excess of the time herein provided for or
granted that he or she shall be entitled to pay during the
period of such excessive absence, but that the pay shall
stop upon the expiration of the granted leave.1 Sec. 7, act
of March 15, 1898 (30 Stat. Z., 316).
sick leave. 44. Nothing contained in section seven of the act mak-
July 7| 1898, v. i • i • • i • *• • •
so, p. ess. ing appropriations for legislative, executive, and judicial
expenses of the Government for the fiscal year eighteen
hundred and ninety-nine, approved March fifteenth, eight-
een hundred and ninety-eight, shall be construed to pre-
vent the head of any Executive Department from granting
thirty days' annual leave with pay in any one year to a
clerk or employee, notwithstanding such clerk or employee
may have had during such year not exceeding thirty days'
leave with pay on account of sickness as provided in said
section seven. Act of July 7, 1898 (30 Stat. Z., 653).
Sundays and 45. The thirty days' annual leave of absence with pay
holidays exclud- . J J . ^ J
^Peb 24 1899 * m any one ^eBT clerks and employees in the several
4, v. so, p.'sw. ' 'Executive Departments authorized by existing law shall
be exclusive of Sundays and legal holidays. Sec. 4, act of
February 24, 1899 (30 Stat. Z., 890).
LEGAL HOLIDAYS.
Par. j Par.
46. Enumeration, pay, etc. | 48. Labor Day.
47. Decoration Da.
iceesof ethe ^' ^e empl°vees °f the navy-yard, Government
to Printing Office, Bureau of Printing and Engraving, and
^ °tner Per diem employees of the Government on duty
6^1886, v'. 23, P: at Washington, or elsewhere in the United States, shall
be allowed the following holidays, to wit: The first day of
January, the twenty-second day of February, the fourth
day of July, the twenty-fifth day of December, and such
days as may be designated by the President a,s days for
1 The word "meritorious" as used above is surplusage; the word "exceptional"
in the same statute raises a question of fact upon which the Attorney-General can
not ad vise. XX Opin. Att. Gen., 716.
MILITAEY LAWS OF THE UNITED STATES. 23
national thanksgiving, and shall receive the same pay as
on other days.1 Joint Res. No. 5, Jcmuary 6, 1885 (23
Stat. L., 516).
47. All per diem employees of the Government, on duty Per diem em-
at Washington or elsewhere in the United States, shall be piyy1S Decora?
allowed the day of each year which is celebrated as Fourth* of jui!
"Memorial" or "Decoration Day" and the fourth of July v'
of each year, as holiday, and shall receive the same pay w
as on other days. Joint Res. No. 6, February 23, 1887
(24 Stat. Z., 644)-
48. The first Monday of September in each year, being Labor Day to
the day celebrated and known as Labor's Holiday, is hereby day* ^une 28J
made a legal public holiday, to all intents and purposes, in 1894> Y' ^ p' "
the same manner as Christmas, the first day of January,
the twenty-second day of February, the thirtieth day of
May, and the fourth day of July are now made by law
public holidays.2 Act of June 28, 1894 (®# Stat. Z., 96).
ADMINISTRATION OF OATHS.
49. The chief clerks of the several Executive Depart- chief clerks of
„ Executive De-
ments and of the various bureaus and offices thereof in partments, etc.,
Washington, District of Columbia, are hereby authorized oath of office
and directed, on application and without compensation 2gAug. 29,
therefor, to administer oaths of office to employees re-
quired to be taken on their appointment or promotion. Act
of August 29, 1890 (26 Stat. L., 371).
50. No officer, clerk, or employee of any Executive De-
partnient who is also a notary public or other officer au- J*{g*®f
thorized to administer oaths shall charge or receive any eDJPloy^es1g90 v
fee or compensation for administering oaths of office to em- 26« P- 371-
ployees of such Department required to be taken on ap-
pointment or promotion therein. Act of August 29, 1890
(26 Stat. L.,371.)
51. Any officer or clerk of any of the Departments law- ^^jJStered bn
fully detailed to investigate frauds on, or attempts to officers, etc. ^^
defraud, the Government, or any irregularity or
duct of any officer or agent of the United States, and any ^
officer of the Army detailed to conduct an investigation, s-'f;J-
and the recorder, and, if there be none, the presiding officer
*In the act of January 6, 1895, which provides that "the employees of the navy-
yard, Government Printing Office, Bureau of Engraving and Printing, and all other
per diem employees" shall be allowed pay for legal holidays, the provision ' all
other per diem employees" is to be restricted to employees whose employment la
similarly permanent or continuous. IV Compt. Dec., 499.
2 For a requirement in respect to the exclusion of Sundays and legal holidays m
the reckoning of annual leaves of absence, see section 4, act of February 24, 1!
(30 Stat. L., 890), paragraph 45, ante.
24 MILITARY LAWS OF THE UNITED STATES.
of any military board appointed for such purpose, shall
have authority to administer an oath to any witness attend-
ing to testify or depose in the course of such investigation.
Section 3, act of March 0, 1901 (31 Stat. Z., 951).
HOURS OF LABOR IN THE EXECUTIVE DEPARTMENTS.
Hours of labor 52. Hereafter it shall be the duty of the heads of the
s. 17, v. so, p. 3i6.' several Executive Departments, in the interest of the
public service, to require of all clerks and other employees,
of whatever grade or class, in their respective Depart-
ments, not less than seven hours of labor each day, except
Sundays and days declared public holidays by law or
Executive order: Provided, That the heads of the Depart-
ments may, by special order, stating the reason, further
extend the hours of any clerk or employee in their
Departments, respectively; but in case of an extension
it shall be without additional compensation.1 Section 7,
act of March 15, 1898 (30 Stat. Z., 316).
Monthly re- 53. Hereafter it shall be the duty of the head of each
ports. . J
Extension of Executive Department to require monthly reports to be
hours of labor. J
^d. made to him as to the condition of the public business in
the several bureaus or offices of his Department at Wash-
ington; and in each case where such reports disclose that
the public business is in arrears, the head of the Depart-
ment in which such arrears exist shall require, as provided
herein, an extension of the hours of service to such clerks
or employees as may be necessary to bring up such
arrears of public business.2 .Ibid.
CONTINGENT FUNDS.
Par.
54. Purchases, how made.
55. Compensation of employees from,
prohibited.
56. Expenditure for newspapers.
Par.
57. The same.
58. Law books, books of reference, etc.
59. Annual reports.
60. Statement of expenditures.
fron? contingent 54< ^° Part °^ ^e contingent fund appropriated to any
fu\S 26 1842 c Department, bureau, or office, shall be applied to the pur-
202, s.ig.'v.s.Vchase of any articles except such as the head of the De-
sec.8«83,B.s. partment shall deem necessary and proper to carry on the
1 This section operates to repeal section 162, Revised Statutes, in respect to the
hours of business in the several Executive Departments. It replaces section 4 of the
act of March 3, 1883 (22 Stat. L., 563), in relation to the same subject. This require-
ment has been held by the Comptroller of the Treasury not to apply to laborers and
mechanics whose compensation is not fixed by law or regulations. IV Compt. Dec.,
578; see, also, Hurlburt v. U. S., 30 Ct. Cls., 16.
2 For quarterly reports of the condition of business in the several Executive Depart-
ments see paragraph 88, post; see, also, paragraph 22, ante. The above enactment
replaces section 4 of the act of March 3, 1883 (22 Stat. L., 531 ), and section 5 of the
act of March 3, 1893 (27 ibid., 675), in part materia.
MILITARY LAWS OF THE UNITED STATES. 25
business of the Department, bureau, or office, and shall,
by written order, direct to be procured.1
55. No moneys appropriated for contingent, incidental,
or miscellaneous purposes shall be expended or paid for 12 1870
official or clerical compensation.2 ^lAAffB-M
•*• t oec.ooSa, U.S.
56. The amount expended in any one vear for newspa- Expenditure
,. T-W L ii TA <• n for newspapers.
pers, for any Department, except the Department of State, Aug. 26, 1342, c.
',. 11,1 j re j ^.i_ . ., ' 202, s. 16, v. 5, p.
including all the bureaus and offices connected therewith, 526.
See ! *•"' K S
shall not exceed one hundred dollars. And all newspapers
purchased with the public money for the use of either
of the Departments must be preserved as files for such
Department.
57. No executive officer, other than the heads of De- The same.
partments, shall apply more than thirty dollars, annually, 3> ^C6>1S- 349-
out of the contingent fund under his control, to pay for
newspapers, pamphlets, periodicals, or other books or
prints not necessary for the business of his office.
58. Hereafter law books, books of reference, and peri- Law books,
7 books of refer-
odicals for use of any Executive Department, or other ence, etc.
Government establishment not under an Executive De- 3, v. so, p. sie.'
partment, at the seat of Government, shall not be -pur-
chased or paid for from any appropriation made for con-
tingent expenses3 or for any specific or general purpose
unless such purchase is authorized and payment therefor
specifically provided in the law granting the appropria-
tion. Section. 3, act of March 15, 1898 (30 Stat. L., 316).
, Revised Statutes, requires that the written order therein mentioned
shall be given by the head of the Department before the articles to be paid for from
the contingent fund are procured, and a subsequent approval is not sufficient. II
Compt. Dec., 1. This section applies only to cases where an appropriation is made
in a lump sum for "contingent, incidental, or miscellaneous expenses," or under
similar words, and where Congress has specifically designated appropriations for enu-
merated items as being for " contingent, incidental, or miscellaneous expenses." Ibid.,
42. When an item is properly payable from an appropriation for contingent expenses,
the discretion of the officer charged with the duty of expending said fund is not sub-
ject to review by the accounting officers upon any question as to the necessity or
advisability of his expenditures. Ibid., 80. XVIII Opin. Att. Gen., 424.
2 Section 3682, Eevised Statutes, prohibits, absolutely, the use for official or clerical
compensation of any money appropriated for contingent, incidental, or miscellaneous
purposes. I Compt. Dec., 392; ibid., 410.
3 The words "contingent expenses," as employed in acts making appropriations,
mean such incidental, casual, and unforeseen expenses as are necessary and appropriate
to the execution of duties required by law in connection with the object for which
the appropriation is made. IV Compt. Dec., 287. There is no discretion conferred
upon heads of Departments to use such appropriations for other purposes. Ibid. , 287.
The provisions in the act of March 15, 1898, that "hereafter law books, books of
reference, and periodicals for the use of any Executive Department, or other Govern-
ment establishment not under an Executive Department, at the seat of Government,
shall not be purchased or paid for from any appropriation made for contingent expenses
or for any specific or general purpose, unless such purchase is authorized and pay-
ment therefor specifically provided in the law granting the appropriation" does not
apply to those branches of the public service located outside of Washington, nor to
the Army, which is not a part of the War Department proper. Ibid., 551.
A newspaper is not a periodical within the meaning of the requirement above set
forth in the act of March 15, 1898 (30 Stat. L., 316). Ibid., 694.
26 MILITARY LAWS OF THE UNITED STATES.
Annual report 59 The head of each Department shall make an annual
of expenditure
?undsntingentrePort to Congress, giving a detailed statement of the
Aug. 26, 1842, c. manner in which the contingent fund for his Department,
«7- .. and for the bureaus and offices therein, has been expended,
Sec. 1;*.{. K. n. f
giving the names of every person to whom any portion
thereof has been paid; and if for anything furnished, the
quantity and price; and if for any service rendered, the
nature of such service, and the time employed, and the par-
ticular occasion or cause, in brief, that rendered such serv-
ice necessary; and the amount of all former appropriations
in each case on hand, either in the Treasury or in the hands
of any disbursing officer or agent. And he shall require of
the disbursing officers, acting under his direction and au-
thority, the return of precise and analytical statements
and receipts of all the moneys which may have been from
time to time during the next preceding year expended by
them, and shall communicate the results of such returns
and the sums total, annually, to Congress.
when submit- 60. Hereafter a detailed statement of the expenditure
MI*. 3, 1877, v. for the preceding year of all sums appropriated for con-
tingent expenses of the independent treasury, or in any
Department or bureau of the Government, shall be pre-
sented to Congress at the beginning of each regular session.
Act of March 3, 1877 (19 Stat. L., 294).
REQUISITIONS FOR FUNDS — WARRANTS — ADVANCES.
Requisitions 61. Every requisition for an advance of moBex* before
for advances of , _.
funds. being acted on by the Secretary of the Treasury, shall be
sent to the proper Auditor for action thereon as required
by section twelve of this act.2
warrants. All warrants, when authorized by law and signed by the
11, v.y28,V209. S' Secretary of the Treasury, shall be countersigned by the
Comptroller of the Treasury, and all warrants for the pay-
ment of money shall be accompanied either by the Aud-
itor's certificate, mentioned in section seven of this act,3 or
by the requisition for advance of money, which certificate
or requisition shall specify the particular appropriation to
which the same should be charged, instead of being speci-
fied on the warrant, as now provided by section thirty-six
hundred and seventy -five of the Revised Statutes; and
1 Section 8 of the act of July 31, 1894 (28 Stat. L., 207), has no application to ques-
tions respecting the advance of funds which, under this section, are subject to the
decision of the Auditor, with a review by the Secretary of the Treasury. 1 Compt.
Dec., 409.
2 Sec. 12, act of Julv 31, 1894 (28 Stat. L., 209)
3 Sec. 7, ibid., 206."
MILITARY LAWS OF THE UNITED STATES.
27
shall also go with the warrant to the Treasurer, who shall
return the certificate or requisition to the proper Auditor,
with the date and amount of the draft issued indorsed
thereon. Requisitions for the payment of money on all aud-
ited accounts, or for covering money into the Treasury, shall
not hereafter be required. And requisitions for advances
of money shall not be countersigned by the Comptroller of
the Treasury. Sec. 11, act of July 31, 1894 (®8 Stat. Z.,
209).
ESTIMATES.
Par.
62. Book of Estimates.
63. Statement of appropriations.
64. Date of submission of estimates.
65. Estimates for deficiencies.
66. Outstanding appropriations.
67. Manner of communicating estimates.
68. Printing and binding.
69. Salaries.
70. Report of claims allowed.
Par.
71. Public works.
72. Additional explanations.
73. Reports of rented buildings.
74. The same, in the District of Columbia.
75. Statement of sales, etc.
76. River and harbor works.
77. Condition of business.
78. Report of employees who are below a
a fair standard of efficiency.
62. All annual estimates for the public service shall
submitted to Congress through the Secretary of the Treas- Cos"f£e ?; 1789) c.
ury, and shall be included in the Book of Estimates pre- Mkr.'io,i8o6,c'.M,;
pared under his direction.
'';
jan.'7?i846Res.
2, v. 9, p. 108; Aug. 4, 1 854, c. 242, s. 15, v. 10, p. 573; May 18, 1865, c. 85, s. 4, v. 14, p. 49; June 20,
1874, c. 328, v. 18, pp. 96, 109, 111; Mar. 3, 1875, c. 129, v. 18, pp. 356, 370; Aug. 15, 1876, C. 289. s. 4,
v.p.200. Sec. 8669, B. S.
63. The Secretary of the Treasury shall annex to the statements to
J . accompany esti-
annual estimates of the appropriations required for the pub- mates. ^ ^^ ^
lie service a statement of the appropriations for the service
of the year, which may have been made by former acts.
64. Hereafter it shall be the duty of the heads of t
several Executive Departments, and of other officers 1901, s. 5, v. si, p'.
authorized or required to make estimates, to furnish to the
Secretary of the Treasury, on or before the fifteenth day
of October of each year, their annual estimates for -the
public service, to be included in the Book of Estimates
prepared by law under his direction, and in case of failure
to furnish estimates as herein required it shall be the duty
of the Secretary of the Treasury to cause to be prepared
in the Treasury Department, on or before the first day of
November of each year, estimates for such appropriations
as in his judgment shall be requisite in every such case,
which estimates shall be included in the Book of Estimates
prepared by law under his direction for the consideration
of Congress. Sec. 5, act of March 3, 1901 (31 Stat. Z.,
1009).
28 MILITARY^ LAWS OF THE UNITED STATES.
Estimates of £5. Hereafter all estimates of appropriations and esti-
^
c.
370.
mates of deficiencies in appropriations intended for the
cies to be here- . . . . ,, ,. . ,
after transmit- consideration and seeking the action ot any ot the commit-
through thegslf- tees of Congress shall be transmitted to Congress through
retary of the , „, , .
Treasury. July the Secretary of the Treasury, and in no other manner;
P. 254.' ' and the said Secretary shall first cause the same to be
properly classified, compiled, indexed, and printed, under
the supervision of the chief of the division of warrants,
estimates, and appropriations of his Department. Sec. 2,
act of July 7, 1884 (8$ 8tot. Z., 864).
Amountof out- 66. The head of each Department, in submitting to Con-
standing appro- . . °
priations to begress his estimates of expenditures required mhisDepart-
designated.
June 2, 1858, c. ment during the year then approaching, shall designate not
308. ' ' ' ' /only the amount required to be appropriated for the next
' fiscal year, but also the amount of the outstanding appro-
priation, if there be any, which will probably be required
for each particular item of expenditure.
Mannerofcom- 67. The heads of Departments, in communicating esti-
mumcatmg esti- • .
mates. ^ ^^^ ^ mates of expenditures and appropriations to Congress, or
202, s.'i4,' v. 5, V to any of the committees thereof, shall specify, as nearly
5*25; MOT. 3, 187o,
129, s. 3, v. is, p. as may be convenient, the sources from which such esti-
sec.896o,n.s. mates are derived, and the calculations upon which they
are founded, and shall discriminate between such estimates
as are conjectural in their character and such as are framed
upon actual information and applications from disbursing
officers. They shall also give references to any law or
treaty by which the proposed expenditures are, respec-
tively, authorized, specifying the date of each, and the
volume and page of the Statutes at Large, or of the
Revised Statutes, as the case may be, and the section of
the act in which the authority is to be found. *
and 68> Tiie head of eactl ot> t]ie Executive Departments,
Mas 1872 c anc* eveiT other public officer who is authorized to have
i4o, s. 2,V. IT,' p. printing and binding done at the Congressional Printing
sec. seel, U.S. Office for the use of his Department or public office, shall
include in his annual estimate for appropriations for the
next fiscal year such sum or sums as may to him seem
1 The policy of Congress in respect to annual appropriations is contained in sections
3660, 3664, 3666, 3675, 3678, 3679, and 3690 of the Revised Statutes. A reading of
their provisions will show conclusively, we think, that Congress has restricted in
every possible way the expenditures and expenses and liabilities of the Government,
so far as executive officers are concerned, to the specific appropriations of each fiscal
year. Wilder v. U. S., 16 Ct. Cls., 528, 543. The estimates must relate to expendi-
tures based upon the enactments of Congress and not to the payment of damages.
Pitman v, U. S., 20 ibid., 253, 256. And to expenditures for the public service during
the ensuing fiscal year. McCallum v. United States, 17 ibid., 92; Conn. Mut. Life
Ins. Co. v. U. S., 21 ibid., 195, 200.
MILITAKY LAWS OF THE UNITED STATES. 29
necessary for printing and binding, to be executed unde
the direction of the Congressional Printer.
69. All estimates for the compensation of officers author- Estimates for
ized by law to be employed shall be founded upon the MM. s, 1355, c
. . ,, f -. , 175, s. 8, v. 10, p'.
express provisions of law, and not upon the authority of 6?o.
,. ^ ,. , ., ,. ! J ' Sec.3662,R.S.
executive distribution.
70. The Secretary of the Treasury shall, at the com- Report of
claims allowed.
mencement of each session of Congress, report the amount July ?. 1884, s.
due each claimant whose claim has been allowed in whole
or in part, to the Speaker of the House of Representatives
and the President of the Senate, who shall lay the same
before their respective houses for consideration. Sec. 2,
Act of July 7, 1884 (%3 Stat. L., £54).
71. Whenever any estimate submitted to Congress by Estimates for
the head of a Department asks an appropriation for any P^unei7°i844,c.
new specific expenditure, such as the erection of a public 693- Mar.V3, isss,'
building, or the construction of any public work, requiring GTO; F
1 £ * ±U i, -1J- v. 19, p. 249.
a plan before the building or work can be properly com- sec;3663,B.s.
pleted, such estimate shall be accompanied by full plans
and detailed estimates of the cost of the whole work. All
subsequent estimates for any such work shall state the
original estimated cost, the aggregate amount theretofore
appropriated for the same, and the amount actually
expended thereupon, as well as the amount asked for the
current year for which such estimate is made. And if the
amount asked is in excess of the original estimate, the full
reasons for the excess and the extent of the anticipated
excess shall be also stated.
72. Whenever the head of a Department, being about Additional ex-
. ,~ . . planations re-
to submit to Congress the annual estimates of expenditures quired.
required for the coining year, finds that the usual items of sec.3664,B.s.
!A statute which fixes the annual salary of a public officer at a designated sum,
without limitation as to time, is not abrogated by subsequent enactments appropri-
ating a less amount for his services for a particular fiscal year, but containing no
words which expressly or impliedly repeal it, U. S. v. Langston, 118 U. S., 389. It
is otherwise, however, when the sum appropriated is "in full compensation" for
the salary of a particular officer, in which case the earlier act is suspended for the
time covered by the appropriation. U. S. v. Fisher, 109 U. S., 143; U. S. v, Mitchell,
ibid., 146. A salary that is established by statute can not be increased nor dimin-
ished by executive officers; It is not a subject of contract between such officers.
The incumbent of an office is entitled to the salary attached thereto by law, and, if
he receives a less sum from disbursing officers, he can claim and receive the balance.
Dyer v. U. S., 20 Ct. Cls., 166, 171; Adams v. U. S., ibid., 115. Such recovery may
be had though, by the terms of his appointment, he was to receive less and though
he may have been compelled to execute a receipt in full therefor. Ibid.
It is not within the power of the head of an Executive Department to reduce or
change the salary of an officer which Congress has specifically prescribed; and an
agreement to that effect, being contrary to public policy, will not be enforced or given
effect as an estoppel. Miller v. U. S. , 103, Fed. Rep. , 413. But, for express authority
to reduce the salaries of clerks, see section 3, act of August 15, 1876 (19 Stat. L., 169),
paragraph 36 ante.
30 MILITARY LAWS OF THE UNITED STATES.
such estimates vary materially in amount from the appro
priation ordinarily asked for the object named, and espe-
cially from the appropriation granted for the same objects
for the preceding year, and whenever new items not there-
tofore usual are introduced into such estimates for any
year, he shall accompany the estimates by minute and full
explanations of all such variations and new items, showing
the reasons and grounds upon which the amounts are
required, and the different items added.
JJ con- 73. it shall be the duty of the heads of the several Exec-
ed1 ut*ve Departments to submit to Congress each year, in the
etMar 3 1883 v annual estimates of appropriations, a statement of the
22, p. 552. number of buildings rented by their respective Depart-
ments, the purposes for which rented, and the annual rental
of each. Act of March 3, 1883 (00 Stat. Z., 55%).
inRse me<theui>i8 7^' Hereafter it shall be the duty of the Secretary of the
tnct of coium- Treasury to cause to be prepared and submitted to Con-
27J"lyi83 1892> v' &ress eacn year> iR tne annual Book of Estimates of
appropriations, a statement of the buildings rented within
the District of Columbia for the use of the Government,
the purposes for which rented, and the annual rental of
each.1 Act of July 16, 1892 (27 Stat. Z., 183).
ies 75> ^ detailed statement of the proceeds of all sales of
material, condemned stores, supplies, or other public
83°'Feb 27 Vs":?' Pr°Perty °f anJ kind except materials, stores, or supplies
csec. sAVi?4!.' so^ to °^cers and soldiers of the Army, or to exploring or
surveying expeditions authorized by law shall be included
in the appendix to the Book of Estimates.
bo? worksnd har" 76' Hereafter the Secretary of War shall annually sub-
30? pn484' 189?> v' mit estimates in detail for river and harbor improvements
required for the ensuing year to the Secretary of the
Treasury to be included in, and carried into, the sum total
of the Book of Estimates. Act of June 4, 1897 (30 Stat.
Z., 48).
bucs?nedition °f 77' Tt sha11 be the dutJ of the head of each Executive
8.^r^p2'808895'DePartment or other Government establishment in the
city of Washington to submit to the first regular session
of the Fifty-fourth Congress, and annually thereafter, in
the annual Book of Estimates, a statement as to the con-
dition of business in his Department or other Government
establishment, showing whether any part of the same is
in arrears, and, if so, in what divisions of the respective
^or statutory provisions in respect to the renting of buildings in the District of
Columbia see paragraphs 93a and 94 post. See, also, the act of March 3, 1887 (24
Stat. L. , 509 ) .
MILITARY LAWS OF THE UNITED STATES. 31
bureaus and offices of his Department or other Govern-
ment establishment such arrears exist, the extent thereof,
and the reasons therefor, and also a statement of the num-
ber and compensation of employees appropriated for in
one bureau or office who have been detailed in another
bureau or office for a period exceeding one year. Sec. 7,
Act of March 8, 1895 (28 Stat. Z., 808).
78. It shall be the duty of the heads of the several Exec- Report of em-
utive Departments of the Government to report to
gress each year, in the annual estimates, the number of e jSynii,' 1390, s.
employees in each bureau and office and the salaries Of7>v*26ip-
each who are below a fair standard of efficiency.1 Section
0, Act of July 11, 1890 (26 Stat. Z.,
PROCUREMENT OF SUPPLIES; CONTRACTS AND PURCHASES
Par. I Par.
79. Advertising. 82. Contracts for stationery.
80-81. Contracts and purchases; Pro-
posals.
83-85. Inspection of fuel in the District
of Columbia.
ADVERTISING.
79. That all advertising required by existing laws to be The same,
done in the District of Columbia by any of the Depart- 21^ p. sn^ ' '
ments of the Government shall be given to one daily and
one weekly newspaper of each of the two principal political
parties and to one daily and one weekly neutral newspaper:
Provided, That the rates of compensation for such service
shall in no case exceed the regular commercial rate of the
newspapers selected; nor shall any advertisement be paid
for unless published in accordance with section thirty-eight
hundred and twenty-eight of the Revised Statutes. Act
of January 21, 1881 (21 Stat. Z., 317).
CONTRACTS AND PURCHASES; PROPOSALS.
80. The act entitled ''An Act to amend section thirty- mfj?peofenact"
seven hundred and nine of the Revised Statutes relating
to contracts for supplies2 in the Departments at Washing-
Section 7, of the act of March 2, 1895 (28 Stat. L., 808), paragraph 77 ante,
requires reports to be submitted to Congress as to the condition of business in the
several Executive Departments, of any arrears that may exist, with the reasons there-
for, and a statement of detailed employees.
2 The word "supplies," as used in section 3709 of the Revised Statutes, evidently
has reference to those things which the well-known needs of the public service will
from time to time require in its different branches for its successful and efficient
administration, and the statute was intended to afford the Government the pecuniary
benefits, as well as the protection against fraud and favoritism, which open and
honest competition is always likely to secure. It could not have been in the mind
32 MILITARY LAWS OF THE UNITED STATES.
April 21, 1894 ton," approved January twenty -seven, eighteen hundred
Provisions Km- and ninety -f our, is hereby so amended that the provisions
1 lee. 3709, K. s. thereof shall apply only to advertisements for proposals
for fuel, ice, stationery, and other miscellaneous supplies
of the lawmaking power to require that purchases could only be made after adver-
tisement of small articles which may occasionally be needed, and where in many
cases the cost of advertising itself would exceed the value of the article purchased.
It can not be said that such cases are governed by the emergency provision in the
statute, for there may be, and are, many instances where the officer could not truth-
fully certify that immediate delivery was necessary. (3 Dig. 2nd Compt. Dec., p.
288.)
The act of March 2, 1861 (sec. 3709, R. S.), while requiring such advertisement,
as the general rule invests the officer charged with the duty of procuring supplies or
services with a discretion to dispense with advertising, if the exigencies of the public
service require immediate delivery or performance. It is too well settled to admit
of dispute at this day that, where there is a discretion of this kind conferred on an
officer or board of officers, and a contract is made in which they have exercised that
discretion, the validity of the contract can not be made to depend on the degree of
wisdom or skill which may have accompanied its exercise. U. S. v. Speed, 8 Wall.,
77, 83; Childs v. U. S., 4 Ct. Cls., 176; Mason v. U. S., 4 Ct. Cls., 495; Wentworth
v. U. S., 5 Ct. Cls., 302. See, also, III Compt. Dec., 175, 314, 470; II ibid., 373, 632.
Section 3709, Revised Statutes, provides, generally, that the making of public
contracts for supplies, etc., shall be preceded by an advertising for proposals "when
the public exigencies do not require the immediate delivery of the articles or per-
formance of the service." Exigencies growing out of a state of war, or hostilities
with Indians, were probably mainly had in view, and it is exigencies of this class
which have been considered in the adjudged cases in the Supreme Court and Court
of Claims, (a) It is clear, however, that other exigencies may exist requiring that
contracts or purchases be made at once or without the delay incident to advertising
for proposals. Thus a loss of stores, structures, etc., on hand, caused by an actus Dei
or vis major, as fire, storm, freshet, or a sudden riot or violent disorder; or a loss of
supplies occasioned by the neglect of military subordinates in charge; or a failure of a
contractor to fulfill a contract for supplies, transportation, or other service, might prop-
erly be regarded as constituting an "exigency" under the statute, if of such magni-
tude or injurious consequence to the Army as to necessitate an immediate making good
of the deficiency. (6) The general rule, however, of the statute, in requiring a notice
and invitation to the public as a preliminary to the awarding of a contract, is founded
upon a sound and well-considered public policy, and exceptions thereto, especially
in time of peace, should be recognized as admissible only where, if the rule were
strictly complied with, the public interests would manifestly be most seriously
prejudiced, (c)
For section 3709 of the Revised Statutes, of which the following paragraphs are
amendments, see paragraph 81, post. For further annotation of section 3709, Revised
Statutes, as amended by the act of January 27, 1894 (28 Stat. L., 33), see paragraph
81, post.
a See U. S. v. Speed, 8 Wallace, 83; Reeside v. U. S., 2 Ct. Cls., 1; Mowry v. U. S., ibid.. 68; Stevens v.
U.S., ibid., 95; Floyd v. U.S., ibid., 429; Crowell v. U. S., ibid., 501; Baker v. U. S., 3 ibid., 343; Hen-
derson v. U. S., 4 ibid., 75; Childs v. U. S., ibid., 176; Wentworth v. U. S., 5 ibid., 302; Wilcox v. U. S.,
ibid. ,386; Cobb v. U. S., 7 ibid., 471, and 9 ibid., 291; Thompson v. U. S., ibid., 187; McKee v. U. S., 12
ibid., 505.
6SeeG. O. 10 of 1879, §§ 22-25, pp. 14-15; do. 72, id., p. 52; do. 40 of 1880, p. 58; also McKee v. United
States, 12 Ct. Cls., r~ '""
This description is rather general, nor is the term "the purchasing officer," by which the Court of
Claims explains it, in Thompson v. United States, 9 Ct. Cls., 196, a much more precise definition.
It is clear, however, that a subordinate officer charged with the duty of being the immediate repre-
sentative of the United States in a contract or purchase should not, in general, venture to dispense
with advertising, on the theory of the existence of a public exigency, in the absence of instructions
or orders from a proper superior. Nor, on the other hand, will a superior officer, in entering into a
contract for his command or branch of the service, properly assume that an ''exigency" exists author-
izing him to dispense with the statutory forms, when the period is time of peace and no imperative
necessity exists for the immediate delivery of the supplies or performance of the service proposed to
be contracted for. It is to be noted that the cases both of Speed and Thompson related to contracts
entered into during the late war. In the instructive opinions of the Attorney-General on the " Fif-
teen per cent contracts," of April 27 and May 3, 1877 (XV Opins. , 235, 253) , it is held that the " exigency "
contemplated by the statute can be one of time only, and that it can be regarded as existing only
where an immediate delivery or performance is required by a public necessity.
MILITARY LAWS OF THE TJiaTED STATES. 33
to be purchased at Washington for the use of the Execu-
tive Departments and other Government establishments
therein named; and no advertisements made or contracts contracts, etc.,
awarded or to be awarded thereon since January twenty-
seven, eighteen hundred and ninety-four, in accordance
with the laws in force prior to said date, shall be declared
to be illegal or invalid for noncompliance with said law of
January twenty-seventh, eighteen hundred and ninety-
four. Act of April 21, 1894 (%8 Stat. L., 62).
81. The advertisement for such proposals shall be made Advertisements
by all the Executive Departments, including the Depart- partments etoDbe
ment of Labor, the United States Fish Commission, the orsec?rSSu 27,
Interstate Commerce Commission, the Smithsonian Insti- X See.V8wbfk!s.
tution, the Government Printing Office, the government of
the District of Columbia, and the superintendent of the
State, War, and Navy building, except for paper and ma-
terials for use of the Government Printing Office, and
materials used in the work of the Bureau of Engraving and
Printing, which shall continue to be advertised for and pur-
chased as now provided bv law, on the same davs and shall Time foropen-
, , , . ,, £ , , £ ing bids to be tb»
each designate two o'clock post meridian of such days for same,
the opening of all such proposals in each Department and
other Government establishment in the city of Washington;
and the Secretary of the Treasury shall designate the day
or days in each year for the opening of such proposals and
give due notice thereof to the other Departments and Gov-
ernment establishments. Such proposals shall be opened
in the usual way and schedules thereof duly prepared and,
together with the statement of the proposed action of each
Department and Government establishment thereon, shall
be submitted to a board, consisting of one of the Assistant
Secretaries of the Treasury and interior Departments and
one of the Assistant Postmasters-General, who shall be
designated by the heads of said departments and the
Postmaster-General, respectively, at a meeting to be called
by the official of the Treasury Department, who shall be
chairman thereof, and said board shall carefully examine
and compare all the proposals so submitted and recommend
the acceptance or rejection of any or all the proposals.
And if any or all of such proposals shall be rejected, adver-
tisements for proposals shall again be invited and proceeded bids,
with in the same manner. Sec. 1, act of January 27, 1894
(28 Stat. Z., 33).
22924—08 3
34 MILITARY LAWS OF THE UNITED STATES.
PURCHASES OF STATIONERY.
efter 82t ^ s^al^ not be lawful f°r anv o* ^e Executive De-
vearited to on® partmen ts to make contracts for stationery or other sup-
Ref nNo38 v18i5* pi*68 f or a longer term than one year from the time the
Pi^8°736,B.8>ontract is made.1
INSPECTION OF FUEL.
83< ^ shall not ke lawful f°r any officer or person in
6 c^v^» military, or naval service of the United States in
^inspectors, ^e District of Columbia to purchase anthracite or bitumi-
e TJaso*p si?' S' nous coa^ or woo(l f°r tne Puklic service except on condition
''
the same shall, before delivery, be inspected and
weighed or measured by some competent person to be
appointed by the head of the Department or chief of the
branch of the service for which the purchase is made from
among the persons authorized to be employed in such
Department or branch of the service.
* # * -x- *
The person appointed under this section shall ascertain
that each ton of coal weighed by him shall consist of two
thousand two hundred and forty pounds, and that each
cord of wood to be so measured shall be of the standard
measure of one hundred and twenty-eight cubic feet.
Each load or parcel of wood or coal weighed and measured
by him shall be accompanied by his certificate of the num-
ber of tons or pounds of coal and the number of cords or
parts of cords of wood in each load or parcel.2 Sec. 6, act
of March 15, 1898 (30 Stat. L., 316).
Pr°Per accounting officer of the Treasury shall
a£countfnifieofl£ ^e furnisnecl with a copy of the appointment of each
cesec 2 ibid inspector, weigher, and measurer appointed under the
Sec.37i2,K.s. preceding section. Sec. #, ibid.
NO payments 85. It shall not be lawful for any accounting officer to
for fuel, etc., . .
without certifl-pass or allow to the credit or any disbursing officer in tne
ma. District of Columbia any money paid by him for purchase
* of anthracite or bituminous coal or for wood, unless the
voucher therefor is accompanied by a certificate of the
proper inspector, weigher, and measurer that the quantity
paid for has been determined by such officer. Ibid.
1 For statutory requirements in reference to the purchase, by the Post-Office Depart-
ment, of envelopes for the use of the several Executive Departments, see paragraph
328, post, section 96, act of January 12, 1895 (28 Stat. L., 624).
2 See also, for further statutory provisions on this subject, the act of June 14, 1878
(20 Stat. L., 131), and sections 12, 13, 14, and 15 of the act of March 2, 1895 (28
Stat. L., 813), and IV Compt. Dec., 585.
MILITAEY LAWS OF THE UNITED STATES. 35
ANNUAL REPORTS.
Par.
Par.
90. When to be furnished to printer.
91. Exclusion of certain matter.
92. Penalty for failure to make reports.
86. Time of making.
87. Eeport of clerks employed.
88. Condition of business.
89. Inefficient clerks.
86. Except where a different time is expressly prescribed
by law, the various annual reports required to be
ted to Congress by the heads of Departments shall
made at the commencement of each regular session, and
shall embrace the transactions of the preceding year.
87. The head of each Department shall make an annual Report of
report to Congress of the names of the clerks and other ° l^g^i&Sx
persons that have been employed in his Department and 525!
the offices thereof; stating the time that each clerk or other
person was actually employed, and the sums paid to each;
also, whether they have been usefully employed; whether
the services of any of them can be dispensed with without
detriment to the public service, and whether the removal
of any individuals, and the appointment of others in their
stead, is required for the better dispatch of business.
88. Hereafter it shall be the dutv of the head of each . Report of con-
dition of busi-
Executive Department, or other Government establishment
* Mar. 15, 1898, s.
at the seat of Government, not under an Executive Depart- 7. v- so. P- 316-
ment, to make at the expiration of each quarter of the
fiscal year a written report to the President as to the con-
dition of the public business in his Executive Department
or Government establishment, and whether any branch
thereof is in arrears. Sec. 7, act of March 15, 1898 (30
Stat. L., 316).
89. It shall be the duty of the heads of the several
Executive Departments of the Government to report
Congress each year in the annual estimates the number of e^Jfn>^ ^uly llt
employees in each bureau and office and the salaries of each 1890» v- 26» P-268-
who are below a fair standard of efficiency. * Sec. #, act of
July 11, 1890 (26 Stat. Z., 268).
90. The head of ^each Department, except the Depart-
ment of Justice, shall furnish to the Congressional Printer rnished
1 For reports to be rendered by the Secretary of War, as such, see the chapter enti-
tled THE DEPARTMENT OF WAR; for reports in respect to the expenditures of contin-
gent funds, see paragraphs 59 and 60, ante. Section 73 of the act of January 12, 1895,
contains the requirement that "no report, document, or publication of any kind dis-
tributed by or from an Executive Department or bureau of the Government shall
contain any notice that the same is sent with 'the compliments' of an officer of the
Government, or with any special notice that it is so sent, except that notice tl
has been sent, with a request for an acknowledgment of its receipt, may be given.
See, also, the act of March 3, 1893 (27 Stat L., 572).
36 MILITARY LAWS OF THE UNITED STATES.
June 25,i864,c. copies of the documents usually accompanying his annual
PP.' 184, V June report, on or before the first day of November in each year,
22, 1870, c. 150, s. , . , , . ,, ,,.
12, v. 16, p. 164. and a copy of his annual report on or before the third
Sec. 198, B. 8. ]j vr v U
Monday of November in each year.
Reports to be 91. The heads of the Executive Departments, before
nfaps, ill us tra- transmitting their annual reports to Congress, the printing
tions, etc., to be . . ° . . . . in
excluded. of which is chargeable to this appropriation, shall cause
v.*26,gp. 4ii. 'the same to be carefully examined, and shall exclude
therefrom all matter, including engravings, maps, draw-
ings, and illustrations, except such as they shall certify in
their letters transmitting such reports to be necessary and
to relate entirely to the transaction of the public business.
Act of August 30, 1890 (26 Stat. L., 4-11}.
faiiu^to mike 92> Every officer who neglects or refuses to make any
reK3yi8 isee s return or report which he is required to make at stated
4sec i78*o T's times by any act of Congress or regulation of the Depart-
ment of the Treasury, other than his accounts, within the
time prescribed by such act or regulation, shall be fined
not more than one thousand dollars and not less than one
hundred.1
INVENTORIES OF PROPERTY.
inventories of 92 a. The Secretary of State, the Secretary of the Treas-
prjufyi5, i8?o,c. ury, the Secretary of the Interior, the Secretary of War,
364- Fet>.27,i877i the Secretary of the Navy, the Postmaster-General, the
C. 69, V. 19, p. 241. . . ,, . . ,, , ,,
sec. 197, B. s. Attorney-General, and Commissioner of Agriculture shall
keep, in proper books, a complete inventory of all the
property belonging to the United States in the buildings,
rooms, offices, and grounds occupied by them, respectively,
and under their charge, adding thereto, from time to time,
an account of such property as may be procured subse-
quently to the taking of such inventory, as well as an
account of the sale or other disposition of any of such prop-
erty, except supplies of stationery and fuel in the public
offices and books, pamphlets, and papers in the Library of
Congress.
1 The following statements in the nature of reports are required by statute to be
submitted to the Secretary of the Treasury, to be by him embodied in the annual
Book of Estimates: (a) Statement of the number of rented buildings in the District
of Columbia (act of July 16, 1892, 27 Stat. L., 183; paragraph 74, ante); (b) statement
of proceeds of sales of old materials, condemned stores, etc. , sec. 3672, Revised Stat-
utes, paragraph 75, ante; (c) statement of the condition of business in the several
Executive Departments and of arrears thereof, sec. 7, act of March 2, 1895 (28 ibid.,
808) ; paragraph 77, ante; (d) statement of the number of employees who are below a
fair standard of efficiency, sec. 2, act of July 11, 1890 (26 ibid., 268); paragraph 78,
ante).
The heads of the several Executive Departments are also required to cause monthly
reports of the public business to be made and submitted to them, showing the condi-
tion of the public business in their respective Departments. Section 174, Revised
Statutes, and section 7, act of March 15, 1898 (30 Stat. L., 216) , paragraphs 22 and 53,
MILITARY LAWS OF THE UNITED STATES.
THE OFFICIAL REGISTER.
93. To enable the officer charged with the duty of pre- The official
paring the Official Register of the United States to pub- RJan.tei2,i895,8.
lish the same, the Secretary of the Senate, the Clerk of 43'v/28'p^
the House of Representatives, the head of each Executive
Department of the Government, and the chief of each and
every bureau, office, commission, or institution not em-
braced in an Executive Department, in connection with
which salaries are paid from the Treasury of the United
States, shall, on the first day of July in each year in which
a new Congress is to assemble, cause to be filed with the
Secretary of the Interior a full and complete list of all
officers, agents, clerks, and other employees of said Depart-
ment, bureau, office, commission, or institution connected
with the legislative, executive, or judicial service of the
Government, or paid from the United States Treasury,
including military and naval officers of the United States,
cadets, and midshipmen.
Said lists shall exhibit the salary, compensation, and
emoluments allowed to each of said officers, agents, clerks,
and other employees, the State or country in which he
was born, the State or Territory and Congressional dis-
trict and county of which he is a resident and from which
he was appointed to office, and where employed.
A list of the names, force, and condition of all ships and
vessels belonging to the United States, and when and
where built, shall also be filed with the Secretary of the
Interior by the heads of the Departments having super-
vision of such ships and vessels, for incorporation in the
Official Register. Sec. 43, act of January 12, 1895 (28
Stat. Z., 601).
MISCELLANEOUS REQUIREMENTS.
Par.
93a. Restriction on renting buildings in
the District of Columbia.
94. The same.
95. Recording clocks prohibited.
96. Remains of deceased employees.
97. Draping public buildings in mourn-
ing prohibited.
98. Closing Departments for death of ex-
officers prohibited.
Par.
100.
101.
102.
Official postage stamps for use of De-
partments.
Penalty envelopes.
Telegraph connecting the Capitol
with the Executive Departments.
The same.
93a. Hereafter no contract shall be made for the rent of
any building, or part of any building, in Washington, not 9^
now in use by the Government, to be used for the purposes "$$$*
of the Government, until an appropriation therefor shall *or' eta
38 MILITARY LAWS OF THE UNITED STATES.
vJi8ne ?i'41874'have been made in terms by Congress.1 Act of June £2,
1874(18 Stat. L., 144).
Renting other 94. Where buildings are rented for public use in the
stSctionn^ * District of Columbia, the Executive Departments are
22, p. 241. authorized, whenever it shall be advantageous to the pub-
lic interest, to rent others in their stead: Provided. That
no increase in the number of buildings now in use, nor in
the amounts paid for rents, shall result therefrom. Act of
August 5, 1882 (22 Stat. Z., QJtf).
Recording 95 NO money appropriated by this act shall be used
clocks prohib- J «*
it(Feb 24 1899 v ^ or exPense °f repairing recording clocks used for record-
so, p. 846.' mg time of clerks or other employees in any of the Exec-
utive Departments at Washington, nor shall there there-
after be used in any of the Executive Departments at
Washington any such recording clocks. 1 Act of February
24, 1899 (30 Stat. L
closing De- 98. Hereafter the Executive Departments of the Gov-
partments for
ernment shall not be closed as a mark to the memory or
Transportation 96. Hereafter the heads of Departments shall not
of remains of de- . ,., . .. .., .
ceased em ploy- authorize any expenditure in connection with transporta-
ees not author- . , , , . ,
ized. tion of remains of deceased employees, except when other-
30, p. 86. ' ' wise specifically provided by law. Act of June 7, 1897, (30
Stat. Z., 86).
Draping pub- 97. Hereafter no building owned, or used for public
lie buildings in , ' , , o , ,
mourning pro- purposes, by the Government of the United States, shall
sec. 3, Mar. 3, be draped in mourning and no part of the public fund shall
1893 v 27 D 715
be used for such purposes. Sec. 3, act of March 3, 1893
(27 Stat. Z., 715).
98. Hereafter t
ernment shall not
sec. 4, Mar. 3, any deceased ex-official of the United States. Sec. h act
15> of March 3, 1893 (27 Stat. Z., 716).
gtOfficmifpostagee 99. The Secretaries, respectively, of the Departments
partmentai use. of State, of the Treasury, War, Navy, and of the Interior,
1883, v. 22, p. 563. ' and the Attorney-General, are authorized to make requisi-
tions upon the Postmaster-General for the necessary
amount of official postage stamps for the use of their De-
partments, not exceeding the amount stated in the estimates
submitted to Congress; and upon presentation of proper
vouchers therefor at the Treasury , the amount thereof shall
be credited to the appropriation for the service of the Post-
Office Department for the same fiscal year.2 Sec. #, act of
March 3, 1883 (92 Stat. Z., 563).
opSinctoe loa And it sha11 be the duty of .the respective Depart-
flcil?s wSmunf- ments to inclose to Senators, Representatives, and Dele-
^' ibid gates in Congress, in all official communications requiring
act of July 7, 1898 (30 Stat. L., 652), contained a similar requirement.
2 This enactment replaces section 198, Revised Statutes, in part materia.
MILITARY LAWS OF THE UNITED STATES. 39
answers, or to be forwarded to others, penalty envelopes
addressed as far as practicable, for forwarding or answer-
ing such official correspondence.1 Sec. #, act of March 3,
1883 (M Stat. Z., 663).
TELEGRAPH CONNECTING THE CAPITOL WITH THE EXECUTIVE
DEPARTMENTS.
101. The lines of telegraph, connecting the Capitol with supervision of
-r^ . \TT , . , -, i Government tel-
the various Departments in Washington, constructed under egraph.
and by virtue of the act of Congress approved March third, is, p. k'
eighteen hundred and seventy-three, entitled uAn act
making appropriations for sundry civil expenses of the
Government for the fiscal year ending June thirtieth,
eighteen hundred and seventy-four, and for other pur-
poses," be, and the same are hereby, placed under the
supervision of the officer in charge of the public buildings
and grounds; and that the said officer be authorized and
empowered to make rules and regulations for the working
of said lines. And the Secretary or head of each Execu- operatora.
tive Department, and the Congressional Printer, are hereby
authorized to detail one person from their present force of
employees to operate the instruments in said Departments
and Printing Office, and each House of Congress may pro-
vide for the employment of an operator in their respective
wings of the Capitol, at a compensation not exceeding one
hundred dollars per month, during the sessions of Con-
gress. Act of February 4, 1874 (18 Stat. L., 14).
102. Said lines of telegraph shall be for the use only of rUse ^J^e-
Senators, Members of Congress, Judges of the United 18Mar207> 1874> v*
States courts, and officers of Congress and of the Execu-
tive Departments, and solely on public business. Act of
March 7, 1874 (IS Stat. Z.,20).
DESTRUCTION, FORGERY, ETC., OF PUBLIC RECORDS.
103. Every person who willfully destroys- or
to destroy, or, with intent to steal or destroy, takes and ord^ 2g ig53
carries away any record, paper, or proceeding of a court c jji, s. 4, v. 10, p.
of justice, filed or deposited with any clerk or officer of sec.6408,R.s.
such court, or any paper, or document, or record filed or
deposited in any public office, or with any judicial or pub-
lic officer, shall, without reference to the value of the rec-
ord, paper, document, or proceeding so taken, pay a fine
of not more than two thousand dollars, or suffer imprison-
ment, at hard labor, not more than three years, or both.
1 For statutory requirements in respect to the free transmission of official mail mat-
ter, see the chapter entitled THE POST-OFFICE DEPARTMENT.
40 MILITARY LAWS OF THE UNITED STATES.
Destroying rec- 104. Every officer, having the custody of any record.
ords by officer in J * -J . f.
charge^ document, paper, or proceeding specified in section fifty-
81,8. 5.V. ib, p. no.' f our hundred and three, who fraudulently takes away, or
* withdraws, or destroys any such record, document, paper,
or proceeding filed in his office or deposited with him or
in his custody, shall pay a fine of not more than two thou-
sand dollars, or suffer imprisonment at hard labor not
more than three years, or both; and shall, moreover, for-
feit his office and be forever afterward disqualified from
holding any office under the Government of the United
States.
Forging, etc. 105. Every person who falsely makes, alters, forges, or
bid, public rec- J J . J
ord.etc. counterfeits any bid, proposal, guarantee, official bond,
24, sfi,v! 14, p.'iS public record, affidavit, or other writing, for the purpose
rence, is siatch., of defrauding the United States, or utters or publishes as
siec. 5418, B.S. true any such false, forged, altered, or counterfeited bid,
proposal, guarantee, official bond, public record, affidavit,
or other writing, for such purpose, knowing the same to
be false, forged, altered, or counterfeited, or transmits to or
presents at the office of any officer of the United States
any such false, forged, altered, or counterfeited bid, pro-
posal, guarantee, official bond, public record, affidavit, or
other writing, knowing the same to be false, forged,
altered, or counterfeited, for such purpose, shall be im-
prisoned at hard labor for a period not more than ten
years, or be fined not more than one thousand dollars, or
be punished by both such fine and imprisonment.
DISPOSITION OF USELESS PAPERS.
Disposition of 106. Whenever there shall be in any one of the Execu-
February IB, tive Departments of the Government an accumulation of
1889, v. 26, p. 672.
files of papers, which are not needed or useful in the trans-
action of the current business of such Department and
have no permanent value or historical interest, it shall be
Report to con- the duty of the head of such Department to submit to Con-
gress. Examina-
tion by commit- gress a report of that fact, accompanied by a concise
statement of the condition and character of such papers.
And upon the submission of such report, it shall be the
duty of the presiding officer of the Senate to appoint two
Senators, and of the Speaker of the House of Representa-
tives to appoint two Representatives, and the Senators
and Representatives so appointed shall constitute a joint
committee, to which shall be referred such report, with
the accompanying statement of the condition and character
MILITARY LAWS OF THE UNITED STATES. 41
of such papers, and such joint committee shall meet and
examine such report and statement and the papers therein
described, and submit to the Senate and House, respec- ReP°rt-
tively, a report of such examination and their recommenda-
tion. And if they report that such files of papers or any
part thereof are not needed or useful in the transaction
of the current business of such Department, and have no
permanent value or historical interest, then it shall be the
duty of such head of the Department to sell as waste paper, saie,etc.
or otherwise dispose of such files of papers upon the best
obtainable terms after due publication of notice inviting
proposals therefor, and receive and pay the proceeds thereof
into the Treasury of the United States, and make report
thereof to Congress. Act of February 16, 1889 (25 Stat.
Z., 678).
107. The act entitled u An act to authorize and provide
for the disposition of useless papers in the Executive De- v- 28. P>
partments," approved February sixteenth, eighteen hun-
dred and eighty-nine, is hereby amended so as to include
in its provisions any accumulation of files of papers of a
like character therein described now or hereafter in the
various public buildings under the control of the several
Executive Departments of the Government. Act: of
March 0, 1896 (28 Stat. Z., 910).
108. All books, papers, and other matters relating to the
office or accounts of disbursing officers of the Executive f^
Departments, and commissions, boards, and establishments 29Fpb55o' 1807> v*
of the Government in the District of Columbia shall at all
times be subject to inspection and examination by the
Comptroller of the Treasury and the Auditor of the Treas-
ury authorized to settle such accounts, or by the duly
authorized agents of either of said officials. Act of Feb-
ruary 19, 1897 (29 Stat. L., 550).
DOCUMENTS FOR DEPARTMENTAL LIBRARIES.
109. The libraries of the eight Executive Departments, JJgg" of doc'
of the United States Military Academy, and United States gs^%18^ '.*'
Naval Academy are hereby constituted designated deposito-
ries of Government publications, and the superintendent
of documents shall supply one copy of said publications in
the same form as supplied to other depositories to each of
said libraries. Sec. 98, act of January 12, 1895 (28 Stat.
L.,694).
42
MILITAEY LAWS OF THE UNITED STATES
PROSECUTION OF CLAIMS.
110. Subpoenas to witnesses.
111, 112. Witnesses' fees; testimony.
113. Professional assistance, how ob-
tained.
114. Evidence to be furnished by Depart-
ments.
115. Employment of attorneys and coun-
sel.
116. Persons formerly in Departments
not to prosecute claims.
Subpcenas
witnesses.
110. Any head of a Department or Bureau in which a
w Feb!°H'i87i, c. claim against the United States is properly pending may
4i2.8' ' apply to any judge or clerk of any court of the United
'States, in any State, District, or Territory, to issue a
subpoena for a witness being within the jurisdiction of such
court, to appear at a time and place in the subpoena stated,
before any officer authorized to take depositions to be used
in the courts of the United States, there to give full and
true answers to such written interrogatories and cross-
interrogatories as may be submitted with the application,
or to be orally examined and cross-examined upon the sub-
ject of such claim.
witnesses' Hi. Witnesses subpoenaed pursuant to the preceding
^Feb^ 14, i87i, c. section shall be allowed the same compensation as is
41|'ec 186 B s a^owe(^ witnesses in the courts of the United States.
compelling H2. If any witness, after being* duly served with such
testimony. J J
^Feb.^14, mi, c. subpoena, neglects or refuses to appear, or, appearing,
41L a refuses to testify, the judge of the district in which the
S^C« 1 Mi. Ji. H. ^
subpoena issued may proceed, upon proper process, to
enforce obedience to the subpoena, or to punish the diso-
bedience, in like manner as any court of the United States
may do in case of process of subpoena ad testificandum
issued by such court.
Professional 113. Whenever any head of a Department or Bureau
assistance ; how T , i • •
obFein 14' 1871 h&ving made application pursuant to section one hundred
5i, s. 3, v. 16,' p'. and eighty-four, for a subpoena to procure the attendance
s'ec. 187, K. s. of a witness to be examined, is of opinion that the interests
of the United States require the attendance of counsel at
the examination, or require legal investigation of any
claim pending in his Department or Bureau, he shall give
notice thereof to the Attorney- General, and of all facts
necessary to enable the Attorney-General to furnish
proper professional service in attending such examination,
or making such investigation, and it shall be the duty of
the Attorney-General to provide for such service.
funSsheendCby°thI 114- In a11 suits brought against the United States in the
ng IS Court of Claims founded upon any contract, agreement,
P
c?aim? ° u r * ° f
or transaction with any Department, or any Bureau, officer,
MILITARY LAWS OF THE UNITED STATES. 43
or atrent of a Department, or where the matter or thinsr on June26,i868,c.
. .fe, . , . f , -, ,• , , , , f . 71, 8. 6, V, 15, p. 76.
which the claim is based has been passed upon and decided Sec. iss, fi. s.
by any Department, Bureau, or officer authorized to adjust
it, the Attorney-General shall transmit to such Depart-
ment, Bureau, or officer, a printed copy of the petition
filed by the claimant, with a request that the Department,
Bureau, or officer, shall furnish to the Attorney-General
all facts, circumstances, and evidence touching the claim
in the possession or knowledge of the Department, Bureau,
or officer. Such Department, Bureau, or officer shall,
without delay, and within a reasonable time, furnish the
Attorney-General with a full statement, in writing, of all
such facts, information, and proofs. The statement shall
contain a reference to or description of all such official
documents or papers, if any, as may furnish proof of facts
referred to in it, or may be necessary and proper for the
defense of the United States against the claim, mentioning
the Department, office, or place where the same is kept or
may be procured. If the claim has been passed upon and
decided by the Department, Bureau, or officer, the state-
ment shall succinctly state the reasons and principles upon
which such decision was based. In all cases where such
decision was founded upon any act of Congress, or upon
any section or clause of such act, the same shall be cited
specifically; and if any previous interpretation or con-
struction has been given to such act, section, or clause by
the Department, Bureau, or officer, the same shall be set
forth succinctly in the statement, and a copy of the opinion
filed, if any, shall be annexed to it. Where any decision
in the case has been based upon any regulation of a Depart-
ment, or where such regulation has, in the opinion of the
Department, Bureau, or officer transmitting such state-
ment, any bearing upon the claim in suit, the same shall
be distinctly quoted at length in the statement. But where
more than one case, or a class of cases, is pending, the
defense to which rests upon the same facts, circumstances,
and proofs, the Department, Bureau, or officer shall only
be required to certify and transmit one statement of the
same, and such statement shall be held to apply to all such
cases, as if made out, certified, and transmitted in each
case respectively.1
115. No head of a Department shall employ attorneys or
counsel at the expense of the United States; but when in counsel.
the title The Court of Claims in the chapter entitled THE DEPARTMENT OF
JUSTICE; see, also, the chapter entitled THE DEPARTMENT OF THE TREASURY L
MENT.
44 MILITARY LAWS OF THE UNITED STATES.
I5ousneifv18i76°'c' neec* °^ counsel or advice, shall call upon the Department
16s 189 R V °^ *^us^ce' the officers of which shall attend to the same.1
Person's for- 116. It shall not be lawful for any person appointed after
partments not to the first day of June, one thousand eight hundred and
° M seventy-two, as an officer, clerk, or employee in any of the
i' p.' Departments, to act as counsel, attorney, or agent for
190, R. s. prosecuting any claim against the United States which was
pending in either of said Departments while he was such
officer, clerk, or employee, nor in any manner, nor by any
means, to aid in the prosecution of any such claim, within
two years next after he shall have ceased to be such officer,
clerk or employee.2
1 See paragraph 343, post, and paragraph 113, ante.
'See XVIII Opin. Att. Gen., 125, 136; XIX ibid., 328; XX ibid., 657.
III.
THE DEPARTMENT OF WAR.
Par.
117, 118. The War Department.
119-121. Performance of duties in the
absence or illness of the Sec-
retary of War or head of a
bureau. The same, during
absence of a chief of bureau.
122-128. Duties of the Secretary of War.
Par.
129-133. Keporte.
134-136. Clerical force of the Depart
ment.
137. Claims.
138-139. The War Department building.
140, 141. Sale of maps, charts, etc.
THE WAR DEPARTMENT.
Par.
117. The Secretary of War.
Par.
118. The Assistant Secretary of War.
117. There shall be at the seat of Government an Execu-
tive Department to be known as the Department of War, ment of war.
and a Secretary of War, who shall be the head thereof.1
118. There shall be in the Department of War an Assist- Assistant^ sec-
ant Secretary of War, who shall be appointed by the beappo^inted. ^
President, by and with the advice and consent of the 20, p. 17.'
Senate, and shall be entitled to a salary of four thousand salary.
five hundred dollars a year, payable monthly, and who
shall perform such duties in the Department of War as Duties.
shall be prescribed by the Secretary or may be required
by law.2 Act March 5, 1890 (26 Stat. Z., 17).
1 The Department of War and the office of Secretary of War were created by the
act of August 7, 1789 (1 Stat. L., 49) . The Secretary of War succeeded to the office
and functions of the Secretary at War, whose powers and duties were denned in an
as imposed duties upon the Secretary of War in connection therewith was repealed
(1 Stat. L., 553). For statutory provisions respecting a temporary vacancy in the
office of Secretary of War see paragraphs 7 to 14, ante.
2 The act of August 5, 1882. authorizing the appointment of an Assistant Secretary
of War was repealed by the act of July 7, 1884 (23 Stat. L., 331), the power conferred
by the act of August 5, 1882, never having been exercised. In the case of Ryan iv.
U. S., 136 U. S., 18, 80, it was held that the authority vested in the Secretary of War
could in his absence be exercised by the officer who under the law became for the
time acting Secretary of War.
46
MILITARY LAWS OF THE UNITED STATES.
PERFORMANCE OF DUTIES IN ABSENCE OR ILLNESS OF SECRETARY OF
WAR.
Par.
119. General Commanding the Army,
etc., may be designated.
120. Chief clerk may sign requisitions,
etc., during illness or absence of
Secretary.
Par.
121. Absence of head of bureau.
commanding H9. The President may authorize and direct the Corn-
Army,. etc., may manding General of the Army or the chief of any military
presidegnTto per- bureau of the War Department to perform the duties of
form duties of . . ,. .
secretary of the Secretary of War under the provisions or section one
lug. 5, 1882, v. hundred and seventy-nine of the Revised Statutes, and
22 D 238
section twelve hundred and twenty-two of the Revised
Statutes shall not be held or taken to apply to the officer
so designated by reason of his temporarily performing such
duties. Act of August 5, 188% (00 Stat. Z., 838).
secretary of 120. When, from illness or other cause, the Secretary of
Warmayauthor- . ••,•*,* ,1 TIT TA , i
ize chief clerk to War is temporarily absent trom the War Department, he
tions, etc., in his may authorize the chief clerk of the Department to sign
Mar. 4, 1874, v. requisitions upon the Treasury Department, and other
papers requiring the signature of said Secretary; the
same, when signed by the chief clerk during such tempo-
rary absence, to be of the same force and effect as if signed
by the Secretary of War himself. l Act of March ,£, 1874
(18 Stat. Z., 19).
as ^1. During the absence of the Quartermaster-General,
e^ °f anv mili^ary bureau of the War Depart-
19&?ii82,B.s. ment, the President is authorized to empower some offi-
cer of the department or corps whose chief is absent to
take charge thereof, and to perform the duties of Quar-
termaster-General, or chief of department or corps, as the
case may be, during such absence.2 Act of February *25,
1877 (19 Stat. Z.,
chF!b°f25Ui877Uv or tne
1 For the general duties of chief clerks see paragraphs 21 and 22, ante.
2 This section contains the substance of section 5 of the act of July 4, 1836 (5 Stat.
L., 117), which was passed in order to enable Q. M. Gen. Thos. 8. Jesup to exer-
cise command of the troops engaged in the prosecution of the Florida war. Gen-
eral Jesup served under this assignment from May 19, 1836, to July 7, 1838, when
he resumed the performance of his duties as Quartermaster-General in the War
Department.
MILITARY LAWS OF THE UNITED STATES.
DUTIES OF THE SECRETARY OF WAR.
Par.
122. Management of military affairs.
123. Custody of records.
124. Collection of flags, etc.
125. Designation and purchase of sup-
plies.
Par.
126. Transportation of troops.
127. Construction and operation of tele-
graph lines.
128. Administration of oaths in investi-
gations.
122. The Secretary of War shall perform such duties as Management
shall from time to time be enjoined on or intrusted to him fairs.1 l
by the President relative to military commissions, the inili- ?, s.ui%!'i, P,49.'
tary forces, the warlike stores of the United States, or to
other matters respecting* military affairs; and he shall con-
duct the business of the Department in such manner as the
President shall direct.3 (See sees. 3660-3665, 3669, R. 8.)
123. The Secretary of War shall have the custody and depUasn mental
charge of all the books, records, papers, furniture, fixtures, records and prop-
arid other property appertaining to the Department. 7 ^u|'4\ }7P9'50
'Sec.'217,'lLS.'
3 The Secretary of War is the regular constitutional organ of the President for the
administration of the military establishment of the nation; and rules and orders
publicly promulgated through him must be received as the acts of the Executive
and, as such, be binding upon all within the sphere of his legal and constitutional
authority. Sucn regulations can not be questioned or defied because they may be
thought unwise or mistaken. The right of so considering and treating the authority
of the Executive, vested as it is with the command of the military and naval forces,
" could not be intrusted to officers of any grade inferior to the Commander in Chief;
its consequence, if tolerated, would be a complete disorganization of both the Army
and Navy. U. S. v. Eliason, 16 Pet., 291, 302; Wilcox v. Jackson, 13 Pet., 498, 513;
Wolsey v. Chapman, 101 U. S., 755; Runkler. U. S., 122 U. S., 543, 557; IT. S. v. Adams,
7 Wall., 463. The Secretary of War is not required to perform duties in the field.
He does not compose any part of the Army, and has no service to perform that may
not be done at the seat of government. I Opin. Att. Gen., 457; U. S. v. Burns, 12
Wall., 246; see also note 2 to par. 5, and the title Bridges over the navigable waters of
the United States, in the chapter entitled THE CORPS OF ENGINEERS.
Duties imposed by statute. — In addition to his duties as the constitutional organ of
the President for the administration of the military establishment, the Secretary of
War is, by other statutes, charged with the supervision of the administration of the
several bureaus or offices of the War Department, their estimates, contracts, expend-
itures, reports, and returns being under his sole direction and control. He has also
been charged, from time to time, with the execution of laws relating to national
cemeteries, the Soldiers' Home, the National Home for Disabled Volunteer Soldiers,
the military prison, the detail of officers to colleges, the distribution of relief to
sufferers by fire, flood, or by the failure of crops, due to drought or other causes, the
construction and operation of canals, roads, and lines of telegraph, the location and
construction of bridges over the navigable waters of the United States, of rai'roads
through the public lands, the protection of settlers and emigrants, the establishment
of harbor lines, the adjustment of claims, the establishment and maintenance of
national military parks, and the location, marking, and preservation ot lines of battle
on the battlefields of the civil war. Since the act of June 28, 1864, all statutes author-
izing the construction of works of river and harbor improvement have contained the
provision that the sums appropriated shall be expended under his direction. The
Military Academy and the schools of application at Willets Point, Fortress Monroe,
and at Forte Leavenwerth and Eiley are also carried on under the immediate super-
vision of the Secretary of War. By the act of April 10, 1878, the Secretary of War
is authorized to prescribe rules and regulations to be observed in the preparation,
submission, and opening of bids for contracts under the War Department. See also
pars. 5 and 6 and notes thereunder for general provisions respecting the powers and
duties of the heads of the several Executive Departments.
48 MILITARY LAWS OF THE UNITED STATES.
collecting 124. The Secretary of War shall from time to time cause
Apr. is, 1814, to be collected and transmitted to him, at the seat of gov-
m ' 8' lf v' 3> p' ernment, all such flags, standards, and colors as are taken
Sec 218 K. S.
' by the Army from the enemies of the United States,
purchase and 125. The Secretary of War shall from time to time define
transportation of .-1,11.1 -n .1 /• T
supplies. and prescribe the kinds as well as the amount of supplies
Mar 3 1813 c
48, s. 5, V. 2,' p! to be purchased by the Subsistence and Quartermaster
s'ec. 219, R. s. departments of the Army, and the duties and powers
thereof respecting such purchases; and shall prescribe
general regulations for the transportation of the articles of
supply from the places of purchase to the several armies,
garrisons, posts, and recruiting places, for the safe-keeping
of such articles, and for the distribution of an adequate
and timely supply of the same to the regimental quarter-
masters, and to such other officers as may by virtue of such
regulations be intrusted with the same; and shall fix and
make reasonable allowances for the store rent and storage
necessary for the safe-keeping of all military stores and
supplies.
ofTtrrro8^re?ction *^§ ^e transportation of troops, munitions of war,
i5J<sn'431v'1i?'p equipments, military property, and stores, throughout the
^ec 220 R s United States, shall be under the immediate control and
supervision of the Secretary of War and such agents as he
may appoint.
of°newr lines °of *2^' That the construction of new lines of telegraph
tejun^'i878'v snaU ^e under the supervision and direction of the several
20, p. 219. military commanders, subject to the approval of the Sec-
retary of War.1 Act of June W, 1878 (20 Stat. Z., 219).
128- Tne Secretary of War is authorized to detail one
c or more °f the employees of the War Department for
49ser 225 R. s ^e purpose of administering the oaths required by law in
the settlement of officers' accounts for clothing, camp and
garrison equipage, quartermaster's stores, and ordnance,
which oaths shall be administered without expense to the
parties taking them.
*The act ot October 1, 1890, provides that "the civilian duties now performed by
the Signal Corps of the Army shall hereafter devolve upon a bureau, which, on or
after July first, eighteen hundred and ninety-one, shall be established in the Depart-
ment of Agriculture, and the Signal Corps of the Army shall remain a part of the
military establishment, under the direction of the Secretary of War, and all esti-
mates for its support shall be included with other estimates for the support of the
military establishment." Vol. 26, Stat. L., ch. 1266, p. 653. This statute operates
to repeal so much of sections 221, 222, and 223 of the Revised Statutes as imposed
duties upon the Secretary of War and the Chief Signal Officer in connection with the
observation and report of storms, leaving under their direction such duties in con-
nection with the construction and repair of military telegraph lines as were imposed
by the acts of March 3, 1875, 18 Stat. L., p. 388, and "June 20, 1878, 20 Stat. L.,
p. 219. See chapter entitled THE SIGNAL DEPARTMENT, post,
MILITARY LAWS OF THE UNITED STATES.
49
REPORTS.
Far.
129. Unexpended balances.
130. Expenditures for contingencies of
the Army.
Par.
131. Proposals for public works.
132. Examination of rivers and harbors.
133. Returns of the militia.
129. The Secretary of War shall make an annual report Report of un-
,* , . . j. ,, ... expended b»l-
to Congress containing a statement of the appropriations ancea.
of the preceding fiscal year for the Department of War, 52, s^v.'s, P. 567-
showing the amount appropriated under each specific head n?*'s. 2, v. is, p!
of appropriation, the amount expended under each head, Sec. 228, B. s.
and the balance which, on the thirtieth day of June pre-
ceding such report, remained unexpended. Such reports
shall be accompanied by estimates of the probable demands
which may remain on each appropriation.
130. The Secretary of War shall lay before Congress, at Annual state-
J J , mentofexpendi-
the commencement of each regular session, a statement of tu.re °| appropri-
* . ation for contin-
the expenditure of the moneys appropriated
229, B. s.
8ec* 23"' B* s*
eof
the contingent expenses of the military establishment. 28. s- 5, V. 2, 'p.
Act of March 2, 1895 (28 Stat. Z., 787).
131. Whenever the Secretary of War invites proposals
for any works, or for any materials or labor for any
work, he shall report to Congress, at its next session, all
bids therefor, with the names of the bidders.
132. The Secretary of War shall cause to be prepared and
submitted to Congress, in connection with the reports of p
examinations and surveys of rivers and harbors hereafter RgSulJ02^
made by order of Congress, full statements of all existing
facts tending to show to what extent the general commerce
of the country will be promoted by the several works of
improvements contemplated by such examinations and sur-
veys, to the end that public moneys shall not be applied
excepting where such improvements shall tend to subserve
the general commercial and navigation interests of the
United States.
133. The Secretary of War shall lay before Congress, on Returns of the
or before the first Monday in February of each year, an msic.a282, B. s.
abstract of the returns of the adjutants-general of the sev-
eral States of the militia thereof.2
JFor other reports, required by statute to be rendered by heads of Executive
Departments, see paragraphs 59, 60, 73 to 78, ante; for reports required to be ren-
dered by the Secretary of War, see the chapters relating to the several staff depart-
ments.
2 See chapter entitled THE MILITIA. For statute requiring a report of the names,
compensation, etc., of civil engineers employed on works of river and harbor improve-
ment, to be rendered to Congress annually by the Secretary of War, see the chap-
ter entitled THE ENGINEER DEPARTMENT.
22924—08 - 4
50 MILITARY LAWS OF THE UNITED STATES.
CLERICAL FORCE OF THE WAR DEPARTMENT.
Par.
134. Chief clerk; duties.
135. Clerical force of the Department.
Par.
136. Restriction details.
chief clerk, Feb. 134. There shall be in the said Department an inferior
27, 1877, v. 19, p. . , . . , ~, ,
241. officer, to be appointed by said principal officer, to be
employed therein as he shall deem proper, and to be
called the chief clerk in the Department of War, and
who, whenever the said principal officer shall be removed
from office by the President of the United States, or in
any other case of vacancy, shall, during such vacancy,
have the charge and custody of all records, books, and
papers appertaining to the said Department. l Act of Feb-
ruary 27, 1877 (19 Stat. Z., 241).
subordinate 135. There shall be in the Department of War:2
° Mark's, 1853, v. One chief clerk of the Department, at a salary of two
sec. 215, K. s. thousand five hundred dollars a year. One disbursing
clerk.3
1For the powers and duties of chief clerks, see paragraphs 21 to 23, ante; for
requirement authorizing the chief clerk of the War Department to sign requisitions
and other papers in the temporary absence of the Secretary, see paragraph 120, ante.
2 The strength and composition of the clerical force in the War Department and its
several bureaus and offices is now fixec1 and established in the annual acts of appro-
priation.
The following clerical force in the Secretary's office is authorized by the act of
March 3, 1901 (31 Stat., 988): One " chief clerk, including five hundred dollars as
assistant in military park and insular affairs, three thousand dollars; clerk to the
chief clerk, two thousand one hundred dollars; clerk to the Secretary, two thousand
two hundred and fifty dollars; clerk to the Assistant Secretary, two thousand one
hundred dollars; stenographer, one thousand eight hundred dollars; disbursing clerk,
two thousand dollars; lour chiefs of division, at two thousand dollars each; superin-
tendent of buildings, outside of State, War, and Navy Department building, in addi-
tion to compensation as chief of division, five hundred dollars; appointment clerk,
two thousand dollars; librarian, one thousand eight hundred dollars; four clerks of
class four; five clerks of class three; ten clerks of class two; eleven clerks of class one;
four clerks, atone thousand dollars each; carpenter, one thousand dollars; foreman
of laborers, one thousand dollars; two carpenters, at nine hundred dollars each; four
messengers; seven assistant messengers; eight laborers; hostler, six hundred dollars;
two hostlers, and one watchman, at five hundred and forty dollars each; in all, one
hundred and four thousand one hundred and fifty dollars."
Temporary clerical force.— The act of March 3, 1901 (31 Stat. L., 988), makes the
following provision: "For continuing the employment of such additional temporary
force of clerks, messengers, laborers, and other assistants, rendered necessary because
of increased work incident to the war with Spain, as in the judgment of the Secre-
tary of War may be proper and necessary to the prompt, efficient, and accurate dis-
patch of official business in the War Department and its bureaus, to be allotted by
the Secretary of War to such bureaus and officec, as the exigencies of the needs of
the service may demand; six hundred thousand dollars." The same enactment also
contains the following restriction upon the employment of the temporary services
therein authorized: " Persons in the classified service of the Government shall not
be eligible to appointment under this appropriation or other appropriations for addi-
tional employees because of increased work incident to the war with Spain or to be
transferred from any position in the classified service to positions paid under this or
said other appropriations."
3 The following offices, created by section 215, Revised Statutes, have ceased to
exist: One superintendent of the War Department building, at $250 per year (see
MILITARY LAWS OF THE UNITED STATES. 51
In the office of the Adjutant-General: One chief clerk,
at a salary of two thousand dollars a year.1
In the office of the Quartermaster-General: One chief
clerk, at a salary of two thousand dollars a year.2
In the office of the Pay master-General: One chief clerk,
at a salary of two thousand dollars a year.3
In the office of the Commissary-General : One chief clerk,
at a salary of two thousand dollars a year.4
In the office of the Surgeon-General: One chief clerk, at
a salary of two thousand dollars a year.5
section 6 of the act of August 5, 1882, 22 Stat. L., 256, paragraph 82, post); one
superintendent of building in the Quartermaster-General's Office, (a) at $200 per year;
one superintendent of building in the Paymaster-General's Office, (a) at $250 per year;
one superintendent of building in the office of the Commissary-General of Subsist-
ence, (a) at $250 year.
ADJUTANT-GENERAL'S OFFICE: The authorized clerical force in the office of the
Adjutant-General is as follows: One " chief clerk, two thousand dollars; clerk to the
Adjutant-General, one thousand eight hundred dollars; two chiefs of division, at
two thousand dollars each; twelve clerks of class four; fourteen clerks of class three;
thirteen clerks of class two; fifty-eight clerks of class one; seven clerks, at one thou-
sand dollars each; four messengers; eighteen assistant messengers; and three watch-
men; in all, one hundred and sixty-five thousand and eighty dollars." Act of March
3, 1901 (31 Stat, L.,989).
2 QUARTERMASTER-GENERAL'S OFFICE: The following is the authorized clerical force
in the office of the Quartermaster-General: One " chief clerk, two thousand dollars;
eleven clerks of class four; nine clerks of class three; twenty-three clerks of class
two; thirty-nine clerks of class one; eight clerks, at one thousand dollars each; six
skilled typewriters, at one thousand dollars each; female messenger, four hundred
and eighty dollars; four messengers; nine assistant messengers; two laborers; civil
engineer, one thousand eight hundred dollars; assistant civil engineer, one thousand
two hundred dollars; draftsman, one thousand eight hundred dollars; assistant
draftsman, one thousand six hundred dollars; assistant draftsman, one thousand four
hundred dollars; assistant draftsman, one thousand four hundred dollars; experienced
builder and mechanic, two thousand five hundred dollars; in all, one hundred and
fifty-two thousand five hundred and forty dollars." Ibid.
3 PAYMASTER-GENERAL'S OFFICE: The following is the authorized clerical force in
the office of the Paymaster-General: One "chief clerk, two thousand dollars; five
clerks of class four; five clerks of class three; seven clerks of class two; two clerks of
class one; one assistant messenger; four laborers; in all, thirty-four thousand five
hundred and sixty dollars." Ibid.
4 COMMISSARY-GENERAL'S OFFICE: The following is the authorized clerical force in
the office of the Commissary-General of Subsistence: One "chief clerk, two thousand
dollars; two clerks of class four; four clerks of class three; five clerks of class two;
eleven clerks of class one; nine clerks, at one thousand dollars each; two assistant
messengers; two laborers; in all, forty-three thousand nine hundred and sixty dollars.
5 SURGEON-GENERAL'S OFFICE: The following is the authorized clerical force in the
office of the Surgeon-General : One ' ' chief clerk, two thousand dollars; fourteen clerks
of class four; eleven clerks of class three; twenty-six clerks of class two; twenty-nine
clerks of class one; five clerks, at one thousand dollars each; anatomist, one thousand
six hundred dollars; engineer, one thousand four hundred dollars; assistant engineer,
for night duty, nine hundred dollars; two firemen; skilled mechanic, one thousand
dollars; twelve assistant messengers; three watchmen; superintendent of building
aSection 3 of the act of April 17, 1900 (31 Stat. L., 1009), and section 3 of the act of March 3, 1901
(Ibid.), contained the requirement that "the term of temporary service of such additional clerks a
other employees rendered necessary because of increased work incident to the war witn BI
under the act of June thirteenth, eighteen hundred and ninety-eight, providing for war expenditures
and for other purposes, appointed in the various departments of the Government, shall be e;
for the term of one year from June thirtieth, nineteen hundred, without compliance with the c
tions prescribed by the act entitled 'An act to regulate and improve the civil service, approveu jnu
uary sixteenth, eighteen hundred and eighty-three, provided they are otherwise competent.
52 MILITAKY LAWS OF THE UNITED STATES.
In the office of the Chief of Engineers: One chief clerk,
at a salary of two thousand dollars a year. 1
In the office of the Chief of Ordnance: One chief clerk,
at a salary of two thousand dollars a year.2
In the office of the Judge- Advocate-General: One chief
clerk, at a salary of two thousand dollars a year.8
de^81tsriction on 136. Hereafter it shall be unlawful to allow or pay to
v.Ji8?p. 85.' 18?4' any °t the persons designated in. this act any additional
compensation from any source whatever, or to retain,
detail, or employ in any branch of the War Department in
the city of Washington any persons other than those herein
(Army Medical Museum and Library), two hundred and fifty dollars; five laborers;
chemist, two thousand and eighty-eight dollars; principal assistant librarian, two
thousand and eight}' -eight dollars; pathologist, one thousand eight hundred dollars;
microscopist, one thousand eight hundred dollars; assistant librarian, one thousand
eight hundred dollars; in all, one hundred and fifty-one thousand two hundred and
sixty-six dollars. " Ibid.
1 ENGINEER OFFICE: The following is the authorized clerical force in the office of
the Chief of Engineers: One "chief clerk, two thousand dollars; five clerks of class
four; four clerks of class three; four clerks of class two; four clerks of class one; one
clerk, one thousand dollars; one assistant messenger, and two laborers; in all, thirty
thousand eight hundred and forty dollars.
"And the services of skilled draftsmen, civil engineers, and such other services as
the Secretary of War may deem necessary may be employed in the office of the
Chief of Engineers to carry into effect the various appropriations for rivers and har-
bors, fortifications, and surveys to be paid from such appropriations: Provided, That
the expenditures on this account for the fiscal year ending June thirtieth, nineteen
hundred and one, shall not exceed seventy-two thousand dollars; and that the Sec-
retary of War shall each year, in the annual estimates, report to Congress the number
of persons so employed and the amount paid to each." Act of March 3, 1901 (31
Stat. L., 990).
2 ORDNANCE OFFICE: The following is the authorized clerical force in the office of
the Chief of Ordnance: One "chief clerk, two thousand dollars; two clerks of class
four; two clerks of class three; two clerks of class two; twenty clerks of class one;
three clerks, at one thousand dollars each; two messengers; one assistant messenger;
one laborer; in all, forty-one thousand six hundred and sixty dollars." Ibid.
3 JUDGE- ADVOCATE-GENERAL'S OFFICE: The following is the authorized clerical force
in the Judge- Advocate-General's Office: One "chief clerk, two thousand dollars; one
clerk of class four; two clerks of class three; one clerk of class two; three clerks of
class one; one clerk, one thousand dollars; one copyist; one messenger, and one
assistant messenger; in all, fifteen thousand four hundred and sixty dollars." Ibid.
SIGNAL OFFICE: " Forchief clerk, two thousand dollars; oneclerk of class four; one
clerk of class one; one messenger; one laborer; in all, six thousand five hundred dol-
lars." Ibid.
OFFICE OF THE INSPECTOR-GENERAL: " For one clerk of class four; two clerks of class
three; three clerks of class two; two clerks of class one; one messenger, and one
assistant messenger; in all, thirteen thousand one hundred and sixty dollars."
Ibid.
KECORD AND PENSION OFFICE: "For three chiefs of division, at two thousand dol-
lars each; one agent, two thousand dollars; twenty-four clerks of class four; forty-five
clerks of class three; ninety-five clerks of class two; one hundred and eighty-seven
clerks of class one; fifty-five clerks, at one thousand dollars each; engineer, one thou-
sand four hundred dollars; assistant engineer, nine hundred dollars; two firemen;
skilled mechanic, one thousand dollars; five messengers; thirty-five assistant mes-
sengers; messenger boy, three hundred and sixty dollars; five watchmen; superin-
tendent of building, two hundred and fifty dollars; and seventeen laborers; in all,
five hundred and eighty-five thousand one hundred and seventy dollars; and all
employees provided for by this paragraph for the Record and Pension Office of the
War Department shall be exclusively engaged on the work of this office for the fiscal
year nineteen hundred and one." Ibid.
MILITARY LAWS OF THE UNITED STATES. 58
authorized,1 except in the Signal Offices and the Engineer
Corps, and except such commissioned officers as the Sec-
retary of War may, from time to time, assign to special
duties. Act of June 00, 187 4 (18 Stat. Z., 85).
CLAIMS FOR LOSS AND INJURY TO PROPERTY DURING WAR WITH SPAIN.
137. For investigation of just claims against the United ^
States for private property taken and used in the military taj 6 190a
service within the limits of the United States during the v- 31> P- 632-
war with Spain, ten thousand dollars, or so much thereof
as maybe necessary; and the Secretary of War is hereby
authorized and directed to cause to be investigated all such
claims and to ascertain the loss and injury, if any, that may
have been sustained by such claimants, and he shall report
to Congress for its consideration what amount or amounts
he finds to be equitably due from the United States to such
claimants: Provided, That all claims not presented to the
Secretary of War under this provision prior to the first day
of January, nineteen hundred and one, shall not be consid-
ered by him and shall be forever barred.2 Act of June 6,
1900 (31 Stat. L., 632).
THE WAR DEPARTMENT BUILDING.
138. The fourth story and attic of the South wing of the J^^f of
State, War, and Navy building, except such portion as wf^*S5dfo5?d
now within the Library of the State Department, are as- 18||c'v622Apg256!
signed to the War Department for such uses of the Depart-
ment as in the judgment of the Secretary of WaCr they may
be best fitted, and the sum of one thousand dollars, or so
much thereof as may be necessary, is hereby appropriated,
out of any money not otherwise appropriated, to be ex
pended under the direction of the Secretary of State to
enable the Department to remove from said fourth story
and attic the records, documents, and papers now stored
there, and to rearrange them in other rooms in said De-
partment. That the partition wall separating the corridors
of the first, second, third, and fourth stories of the East
wing from the said stories of the South wing of the State,
lrThe clause of the above enactment authorizing details in the city of Washington
may be regarded as superseded by section 4 of the act of August 5, 1882 (22 Stat. L.,
219) ; the clerks and messengers at the headquarters of the Army, authorized to be
em ployed by the act of March 15, 1898 (30 Stat. L., 318), and subsequent acts of appro-
priation, are not included in the above restriction, their employment in the city of
Washington being expressly authorized by Congress.
2 See the title Prosecution of Claims in the chapter entitled PROVISIONS APPLICABLE
TO THE SEVERAL EXECUTIVE DEPARTMENTS.
54 MILITAKY LAWS OF THE UNITED STATES.
War, and Navy building shall be removed so as to afford
easy access from one wing to the other on the aforemen-
tioned floors of said building: Provided, That a joint se-
lect committee of three members of the House of Repre-
sentatives and three Senators, to be appointed respectively
by the Speaker of the House and the President of the
Senate, upon the passage of this act, shall, on or before
the completion of the North wing of the State, War, and
Navy building, make examination of said building and set
apart such portions thereof for the use and occupancy of
the State, War, and Navy Departments respectively as in
their judgment the best interests of the public service and
the needs of said Departments respectively may require
and upon filing an agreed statement of such partition by
said joint select committee in triplicate with the respec-
tive Secretaries of such Departments the building shall be
occupied as therein provided as soon thereafter as practi-
cable.1 Sec. 6, act of August 5, 1882 (22 Stat. Z., 256).
ofDeEngfi°n^Ceef 139< The President is hereby authorized and directed
SentSSautehOT-to designate from the Engineer Corps of the Army or the
izcommission to ^avv' an °fficer we^ qualified for the purpose, who shall
SJSneeJ.upervi~ke detailed to act as superintendent of the completed por-
22Mp*r553 ; 1883>v-tions of the State, War, and Navy Department building,
under direction of the Secretaries of State, War, and Navy,
who are hereby constituted a commission for the purposes
of the care and supervision of said building, as hereinafter
specified. Said officer shall have charge of said building,
and all the engines, machinery, steam and water supply,
heating, lighting, and ventilating apparatus, elevators, and
all other fixtures in said building, and all necessary repairs
and alterations thereof, as well as the direction and control
of such force of engineers, watchmen, laborers, and others
engaged about the building or the apparatus under his
supervision; of the cleaning of the corridors and water
closets; of the approaches, side- walks, lawns, court-yards,
and areas of the building, and of all rooms in the sub-
basement which contain the boilers and other machinery,
or so much of said rooms as may be indispensable to the
proper performance of his duties as herein provided. Act
of March 3, 1883 (22 Stat. Z., 553).
SALE OF MAPS, CHARTS, ETC.
surplus charts 140. Any surplus charts of the northwestern lakes may
may be sold. J . r
Mar. 3, 1869, c. be sold to navigators upon such terms as the Secretary of
122, s. 1, v. 15, pp. XTT & *
301, 303. War may prescribe.
Sec. 226) B. S.
MILITARY LAWS OF THE UNITED STATES. 55
141. The Chief Signal Officer may cause to be sold any surplus maps
, ," ,. ,, ,, 0. i/^m ^i and publications
surplus maps or publications 01 tne oig'nal Umce, the money of signal office
, . T . • , , j. . may be sold.
received theretor to be applied toward defraying the ex- Mar. 3, ISTS, c.
T . , » *, 227, v. 17, p. 510
penses of the signal service; and an account of the same (527).
shall be rendered in each annual report of the Chief of the
Signal Service.1
1 DISPOSITION OF USELESS PAPERS.
For statutes regulating the disposition of useless papers, etc., in the several Execu-
tive Departments, see the acts of February 16, 1889 (25 Stat. L., 672), and March 2, 1895
(28 Stat. L., 933).
CHAPTER
PROVISIONS APPLICABLE TO SEVERAL CLASSES OF
OFFICERS.
Pars.
142-145. The civil service.
146-154. The civil-service law.
155-162. Oaths of office.
Pars.
163-170. Salaries; double salaries.
171-179. Criminal offenses.
180-182. Miscellaneous provisions.
THE CIVIL SERVICE.
Par.
145. Preference to discharged soldiers
and sailors in reductions.
Par.
142. President to regulate admissions.
143. Preference to persons disabled in
military service.
144. Recommendation of same to em-
ployment. .
President to 142. The President is authorized to prescribe such regu-
regulate admis-, . ,. . ., . , ., . ., .
sions to the civil lations for the admission of persons into the civil service
8eMare'3, 1871, c. of the United States as may best promote the efficiency
514! s' P' thereof, and ascertain the fitness of each candidate in
' respect to age, health, character, knowledge, and ability
for the branch of the service into which he seeks to enter;
and for this purpose he may employ suitable persons to
conduct such inquiries, and may prescribe their duties,
and establish regulations for the conduct of persons who
may receive appointments in the civil service.1
preference of 143. Persons honorably discharged from the military or
persons disabled •; .. , .,., i,«
fn military or naval service by reason of disability resulting from wounds
naval service. .. . i • i -i « <• -i i 1 1 i
Mar. 3, 1865, or sickness incurred in the line of duty shall be preferred
Res. No. 27, s. 1, , . . . ... _ .11,1 /. i
v. is, p. 571. for appointments to civil offices, provided they are found
* to possess the business capacity necessary for the proper
discharge of the duties of such offices.2
Sec.
1 See the title The Civil Service Law, post. Neither section 1753, Revised Statutes,
nor the civil service act of January 16, 1883 (22 Stat, L., 403), puts any restrictions
upon the power of removal from appointive offices except for refusal to contribute to
political funds or neglect to render political service; hence Presidential Rule II,
relating to the civil service and providing (as amended July 27, 1897), that no
removal shall be made without giving the accused notice and an opportunity to make
defense, has no such authority at law as confers upon the holder of an office a vested
right thereto, with the right to invoke the equitable power of the courts to restrain
his removal therefrom in violation of such rule. Page et al. v. Moffett, 85 Fed. Rep.,
38. See, also, as to the equitable jurisdiction of the Federal courts, In re Sawyer,
124 U. S., 200, and World's Columbian Exp. v. U. S., 18 U. S. App., 159, 6 Circ. Ct.
App., 71, 56 Fed. Rep., 667; Butler v. White, 83 ibid., 578; Carr v. Gordon, 82
ibid., 373.
2 Joint resolution of March 3, 1865 (sec. 1754, Rev. Stat.), considered in connection
with the act of March 3, 1871, does not exempt honorably discharged soldiers and
56
MILITAEY LAWS OF THE UKITED STATES.
57
144. In grateful recognition of the services, saciifices, . Recommend*
and sufferings of persons honorably discharged from themento/sucifper"
military and naval service of the country, by reason of Mar. 3, 1395,
wounds, disease, or the expiration of terms of enlistment, v. 13, p. 571.'
., . ~ , , ' Sec. 1755, B.S.
it is respectfully recommended to bankers, merchants,
manufacturers, mechanics, farmers, and persons engaged
in industrial pursuits, to give them the preference for
appointments to remunerative situations and employments.
145. In making any reduction of force in any of the Preference in
Executive Departments, the head of such Department Aug. 15,' ISTC,
shall retain those persons who may be equally qualified who
have been honorably discharged from the military or naval
service of the United States, and the widows and orphans
of deceased soldiers and sailors. Act of August 15 s 1876
(19 Stat. Z., 169).
THE CIVIL-SERVICE LAW.1
Par.
151. Persons using intoxicating liquor
barred.
152. Members of family, restriction.
153. Recommendations by members of
Congress prohibited.
154. Certificate of residence.
Par.
146. Appointment of commissioners.
147. Duties; examination?.
148. Chief examiner.
149. Frauds in examination.
150. Examinations for appointment and
promotion.
146. That the President is authorized to appoint, by and 0
with the advice and consent of the Senate, three persons, eijaiu 16)1883)V>
not more than two of whom shall be adherents of the same **> p- 403-
sailors from liability to examination for admission to the civil service, but entitles
them to a preference for appointment as against other persons of equal qualifications
for the place. XVII Opin. Att. Gen., 194. See, also, 19 ibid., 318.
Section 1754, Revised Statutes, provides that "persons honorably discharged from
the military or naval service ' * * shall be preferred for appointment to civil
offices, provided they are found to possess the business capacity necessary for the dis-
charge of the duties of such offices," and if the duties assigned to any clerk of one
class can be as well performed by a clerk of a lower class, or by a female clerk, it
shall be lawful for him to diminish the number of the clerks of the higher grade and
increase the number of the lower grade. Section 3, act of August 15, 1876 (19 Stat.
L., 169), provides that "in making any reduction of force in any Executive Depart-
ment the head of such Department shall retain those persons who may be equally
qualified who have been honorably discharged from the military or naval service of
the United States:" Held, that to entitle an ex-soldier to retention in the service
under these statutes, in preference to a civilian, he must be "equally qualified," that
qualification must be determined by the head of the Department, and that a court
could not enter an Executive Department, examine the acts of its head, inquire into
the exercise of his discretion, and investigate as to the causes of its exercise. Keim
v. U. S., 33 Ct. Cls., 174.
'The civil service law, act of January 16, 1883 (22 Stat. L., 403), was intended to
provide a body of civil officers selected solely for competency and fitness, protect
them against accountability to any political party, and prevent their discharge, pro-
motion, or degradation for giving or withholding political contributions; but it di
not deprive the appointing power of any existing rights to remove or change in rank
for other reasons. Carr v. Gordon, 82 Fed. Rep., 373. The act of January 16, 1883,
is within the legitimate scope of the general powers conferred by Art. I, sec. 8, clause
18, of the Constitution. Butler v. White, 83 Fed. Rep., 578; Berry v. White, ibid.;
Ruckman v. White, ibid.
58 MILITABY LAWS OF THE UNITED STATES.
party, as Civil Service Commissioners, and said three com-
missioners shall constitute the United States Civil Service
Commission. Said commissioners shall hold no other
official place under the United States.
*****
Duties of com- 147. That it shall be the duty of said commissioners:
missioners. .
F^rst. To aid the President, as he may request, in pre-
Ruies. paring suitable rules for carrying this act into effect,1 and
when said rules shall have been promulgated it shall be
the duty of all officers of the United States in the Depart-
ments and offices to which any such rules may relate to
aid, in all proper ways, in carrying said rules, and any
modifications thereof, into effect.
Second. And, among other things, said rules shall pro-
vide and declare, as nearly as the conditions of good admin-
istration will warrant, as follows:
First, f or open, competitive examinations for testing the
fitness of applicants for the public service now classified
or to be classified 2 hereunder. Such examinations shall
be practical in their character, and so far as may be shall
relate to those matters which will fairly test the relative
capacity and fitness of the persons examined to discharge
the duties of the service into which they seek to be
appointed.
Vacancies,how Second, that all the offices, places, and employments so
arranged or to be arranged in classes shall be filled by
selections according to grade from among those graded
- highest as the results of such competitive examinations.
Third, appointments to the public service aforesaid in
the Departments at Washington shall be appointed among
the several States and Territories and the District of Col-
umbia upon the basis of population as ascertained at the
forepxami^atioQS ^as^ Prece(ling census. Every application for an examina-
tion shall contain, among other things, a statement, under
oath, setting forth his or her actual bona fide residence at
1 See Appendix, p. 1096.
2 The term "classified service" indicates the parts of the service within the pro-
visions of the civil-service law and rules requiring appointments therein to be made
upon examination and certification by the commission, unless especially excepted
from competition; the term "unclassified service" indicates the parts of the service
which are not within those provisions, and, therefore, in which appointments may
be made without examination and certification by the commission. Sec. 2, Manual
for Examinations for the Classified Civil Service.
A vacancy in the classified service may be filled either by original appointment
upon examination and certification by the commission, as explained, or by transfer
or promotion from certain other positions in the classified service, or by reinstate-
ment.
MILITARY LAWS OF THE UNITED STATES. 59
the time of making the application, as well as how long he
or she has been a resident of such place.
Fourth, that there shall be a period of probation before Probation.
any absolute appointment or employment aforesaid.
Fifth, that no person in the public service is for that Political con-
, .. . tributions and
reason under any obligations to contribute to any political
fund, or to render any political service, and that he will not
be removed or otherwise prejudiced for refusing to do so.
Sixth, that no person in said service has any right to use
his official authority or influence to coerce the political
action of any person or body.
Seventh, there shall be noncompetitive examinations in
tive examina-
all proper cases before the commission, when competent turns,
persons do not compete, after notice has been given of the
existence of the vacancy, under such rules as may be pre-
scribed by the commissioners as to the manner of giving
notice.
Eighth, that notice shall be given in writing by the aP- chan Vs^n serV
pointing power to said commission of the persons selected ice-
for appointment or employment from among those who
have been examined, of the place of residence of such per-
sons, of the rejection of any such persons after probation,
of transfers, resignations, and removals, and of the date
thereof, and a record of the same shall be kept by said
commission.
And any necessary exceptions from said eight f undamen- rufe*ceptions to
tal provisions of the rules shall be set forth in connection
with such rules, and the reasons therefor shall be stated in
the annual reports of the commission.
Third. Said commission shall, subject to the rules that Regulations
, , . .. for exaiaina-
may be made by the President, make regulations for, and tions.
have control of, such examinations, and, through its mem-
bers or the examiners, it shall supervise and preserve the mnutesof pro-
records of the same; and said commission shall keep min-
utes of its own proceedings.
Fourth. Said commission may make investigations con- investigations.
cerning the facts, and may report upon all matters touching
the enforcement and effects of said rules and regulations,
and concerning the action of any examiner or board of
examiners hereinafter provided for, and its own subordi-
nates, and those in the public service, in respect to the
execution of this act.
Fifth. Said commission shall make an annual report to Annual report.
the President for transmission to Congress, showing its own
60 MILITARY LAWS OF THE UNITED STATES.
action, the rules and regulations and the exceptions thereto
in force, the practical effects thereof, and any suggestions
it may approve for the more effectual accomplishment of
the purposes of this act. Sec. #, act of January 16, 1883
(m Stat. L., 403).
ine?ief exam ^' ^a^ commission is authorized to employ a chief
sec. 3, ibid. examiner, a part of whose duty it shall be, under its direc-
tion, to act with the examining boards, so far as practi-
cable, whether at Washington or elsewhere, and to secure
accuracy, uniformity, and justice in all their proceedings,
which shall be at all times open to him. The chief exam-
iner shall be entitled to receive a salary at the rate of three
thousand dollars a year, and he shall be paid his necessary
traveling expenses incurred in the discharge of his duty.
secretary. The commission shall have a secretary, to be appointed by
the President, who shall receive a salary of one thousand
six hundred dollars per annum. It may, when necessary,
emP^ov a stenographer and a messenger, who shall be
paid, when employed, the former at the rate of one thou-
sand six hundred dollars a year, and the latter at the rate
of six hundred dollars a year. The commission shall, at
Washington, and in one or more places in each State and
Territory where examinations are to take place, designate
and select a suitable number of persons, not less than three,
in the official service of the United States, residing in said
State or Territory, after consulting the head of the depart-
ment or office in which such persons serve, to be members
°f ex °^ ^oar^s °^ examiners, and may at any time substitute
any other person in said service living in such State or
Territory in the place of any one so selected. Such boards
of examiners shall be so located as to make it reasonably
convenient and inexpensive for applicants to attend before
them; and where there are persons to be examined in any
State or Territory, examinations shall be held therein at
iicDofficeref pub" ^eas^ twice in each year. It shall be the duty of the col-
lector, postmaster, and other officers of the United States,
at any place outside of the District of Columbia where
examinations are directed by the President or by said
board to be held, to allow the reasonable use of the public
buildings for holding such examinations, and in all proper
ways to facilitate the same. Sec. 3, ibid.
^9. Any said commissioner, examiner, copyist, or mes-
senger, or any person in the public service who shall will-
fully and corruptly, by himself or in cooperation with one
MILITARY LAWS OF THE UNITED STATES. 61
or more other persons, defeat, deceive, or obstruct any per-
son in respect of his or her right of examination according
to any such rules or regulations, or who shall willfully, cor-
ruptly, and falsely mark, grade, estimate, or report upon
the examination or proper standing of any person examined
hereunder, or aid in so doing, or who shall willfully and
corruptly make any false representations concerning the
same or concerning the person examined, or who shall will-
fully and corruptly furnish to any person any special or
secret information for the purpose of either improving or
injuring the prospects or chances of any person so ex-
amined, or to be examined, being appoined, employed, or
promoted, shall for each such offense be deemed guilty of
a misdemeanor, and upon conviction thereof, shall be
punished by a fine of not less than one hundred dollars,
nor more than one thousand dollars, or by imprisonment
not less than ten days, nor more than one year, or by both
such fine and imprisonment. Sec. 5, ibid.
-X- # # * *
150. After the expiration of six months from the pas- ^^J^10*1
sage of this act no officer or clerk shall be appointed, pomtment and
and no person shall be employed to enter or be promoted Sec- 7> iud-
in either of the said classes now existing, or that may be
arranged hereunder pursuant to said rules, until he has
passed an examination, or is shown to be specialty exempted
from such examination in conformity herewith. But noth-
ing herein contained shall be construed to take from those
honorably discharged from the military or naval service
any preference conferred by the seventeen hundred and preference
fifty-fourth section of the Revised Statutes1 nor to take csS?i 754, K.S.
from the President any authority not inconsistent with
this act conferred by the seventeen hundred and fifty-third
section2 of said statutes; nor shall any officer not in the
executive branch of the Government, or any person merely
employed as a laborer or workman, be required to be classi-
fied hereunder; nor, unless by direction of the Senate,
shall any person who has been nominated for confirmation
by the Senate be required to be classified or to pass an
examination. Sec. 7, ibid.
151. No person habitually using intoxicating beverages inpte0r^fcsa
to excess shall be appointed to, or retained in, any office, ^^appj^
appointment, or employment to which the provisions of m|J*-g ibid
this act are applicable. Sec. 8, ibid.
^aragraph 143 , ante. 2 Paragraph 142, ante.
62 MILITAEY LAWS OF THE UNITED STATES.
Members of a 152. Whenever there are already two or more members
sec. 9, md. of a family in the public service in the grades covered by
this act, no other member of such family shall be eligible
to appointment to any of said grades.1 Sec. 9, 'ibid.
Recommenda- 153. No recommendation of any person who shall apply
tion by members _ . . , . .
of congress. tor omce or place under the provisions or this act which
Sec. 10, ibid. . L . 0 •»«• i • A« TT ?
may be given by any Senator or Member of the House of
Representatives, except as to the character or residence
of the applicant, shall be received or considered by any
person concerned in making any examination or appoint-
ment under this act. Sec. 10, ibid.
Applications 154. Hereafter every application for examination before
for examination .,-.., ~ . , . .
to be accompa-the Civil Service Commission for appointment in the de-
cate of residence, partmental service in the District of Columbia shall be
July 11, 1890, v. r
26, p. 236. accompanied by a certificate of an officer, with his official
seal attached, of the county and State of which the appli-
cant claims to be a citizen, that such applicant was. at the
time of making such application, an actual and bona fide
resident of said county, and had been such resident for a
Preceding sec- period of not less than six months next preceding: but this
tion not to apply r . . ; P'
to promo tion, provision shall not apply to persons who may be in the serv-
ice and seek promotion or appointment in other branches
of the Government. Act of July 11, 1890 (26 Stat. Z.,
OATHS OF OFFICE.
Par.
155-156. Official oaths.
157. Removal of disabilities.
158. Oath of Office.
Par.
159-160. Who may administer.
161. The same, chief clerks.
162. Custody of oaths.
official oaths. 155. Section seventeen hundred and fifty-six of the Re-
2, -7. 23, p. 22. ' vised Statutes is hereby, repealed; and hereafter the oath
to be taken by any person elected or appointed to any office
of honor or profit -either in the civil, military, or naval
service, except the President of the United States, shall be
as prescribed in section seventeen hundred and fifty-seven 2
of the Revised Statutes. But this repeal shall not affect
the oaths prescribed by existing statutes in relation to the
performance of duties in special or particular subordinate
offices and employments. Sec. 2, act of May 13, 1884 (®3
Stat. Z.,#£).
existing0 rights! 156. The provisions of this act shall in no manner affect
eicibid., s. 3. any right? duty, claim, obligation, or penalty now existing
1 Whether there are already two or more members of a family in the public service,
as provided in section 9, is a question of fact to be determined by the Civil Service
Commission. XVII Opin. Att. Gen., 554.
2 Paragraph 158, post.
MILITARY LAWS OF THE UNITED STATES. 63
or already incurred; and all and every such right, duty,
claim, obligation, and penalty shall be heard, tried, and
determined, and effect shall be given thereto, in the same
manner as if this act had not been passed. Sec. 3, ibid.
157. The disability imposed by section three of the four- 0-™1 of
teenth amendment to the Constitution of the United States June ?•
heretofore incurred is hereby removed. Act of June 6,
1898 (30 Stat. L.,
158. Whenever any person is elected or ap- Jjf h£f °ffice-
pointed to any office of honor or trust under the Govern- ^ vJfc >86*:
ment of the United States, * * * he shall,
entering upon the duties of his office, take and subscribe
in lieu of that oath the following oath:1 "I, A. B., do
solemnly swear (or affirm) that I will support and defend
the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and alle-
giance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion ; and
that I will well and. faithfully discharge the duties of the
office2 on which 1 am about to enter. So help me God."
Act of June 6, 1898 (30 Stat. Z., 43$).
159. The oath of office required by the preceding section
may be taken before any officer who is authorized either by 64A^g26V18i21> £
the laws of the United States, or by the local municipal 32|ec 2 May 13
law, to administer oaths, in the State, Territory, or dis- 18|tc.vi 768,^.1.'
trict where such oath may be administered.3
1 The disabilities to hold office under the United States imposed under the author-
ity conferred by section 3 of the fourteenth amendment to the Constitution, and
which were embodied in section 1218 of the Revised Statutes, as modified by the acts
of May 13, 1884 (23 Stat. L., 21), and March 31, 1896 (29 Stat L., 84), were, by the
act of June 6, 1898, finally and entirely removed.
2 For definition of office see U. S. v. Germaine, 99 U. S., 508, and Mouat v. U. S.,
124 U. S., 303. See, also, note 1 to paragraph 4, ante. Clerks appointed by the head
of an Executive Department are officers, and are required by the Constitution to take
the oath of office. 1 Compt. Dec., 4. An employee whose compensation is fixed by
the head of an Executive Department is not required to take a new oath of office
when his compensation is increased. Ibid., 267. When by law a change is made in
the compensation of an office, and in the manner in which such compensation shall
be ascertained, the incumbent thereof is entitled from the date of the act to the com-
pensation so fixed and is not required to take a new oath of office. Ibid., 313.
Under the act of February 14, 1889 (25 Stat. L., 670), S. was appointed from civil
life to the position of major of engineers in the Army, and thereupon was placed on
the retired list of the Army as of that grade; advised, that he must i^ke the oath
required by section 1756 of the Revised Statutes, and that this act would be in law a
legal acceptance of the office, and, as such, a sufficient formal acceptance. XIX
Opin. Att. Gen., 283.
Section 1757, Revised Statutes, and the act of May 13, 1884 (23 Stat. L., 22), which
require generally that an officer shall take the oath of office prescribed "before enter-
ing upon the duties of his office" are directory only (U. S. v. Eaton, 169 U. S., 331),
and a deputy clerk of a United States court whose acceptance of office on the same
day he was appointed was evidenced by his entrance upon duty, and who subse-
quently took the oath, is entitled to compensation from that day. 4 Compt. Dec.,
496.
8 See paragraph 158, ante.
64 MILITARY LAWS OF THE UNITED STATES.
160t *n a^ cases *n ^ich under the laws of the United
m!ept i6Cis5o c States oaths or acknowledgments may now be taken or
ju'i/299' 185445? made before any justice of the peace of any State or Terri-
3il: juneJB1!^' t°rv? ol* *n ^e District of Columbia, they may hereafter be
P 3i86-s'AugV' 15' a^so taken or made by or before any notary public duly
p%6o6C' 304> v- 19' appointed in any State, district, or Territory, or any of the
Sec-1778'B-s- commissioners of the circuit courts, and when certified
under the hand and official seal of such notary or commis-
sioner, shall have the same force and effect as if taken or
made by or before such justice of the peace.
Exeh(te?i?eerki>ef 161. The chief clerks of the several Executive Depart-
partments etc., ments and of the various bureaus and offices thereof in
to administer
oath of office Washington, District of Columbia, are hereby authorized
2gAug^29, ISM, v. and directed, on application and without compensation
therefor, to administer oaths of office to employees required
to be taken on their appointment or promotion. Act of
^V August 29, 1890 (26 Stat. L., 371). United States com-
missi°ners and all clerks of United States courts are author.
19Ma8i896, a. ized to administer oaths.1 Act of May 28, 1896 (29 Stat.
'
of 162. The oath of office taken by any person pursuant to
j^ the requirements of section seventeen hundred and fifty -
sec. i75§,R.s. six,2 or of section seventeen hundred and fifty-seven, shall
be delivered in by him to be preserved among the files of
the House of Congress, Department, or court to which the
office in respect to which the oath is made may appertain.
SALARIES — DOUBLE SALARIES.
Par. Par.
163. No payments to recess appointees.
164. Recess appointments.
165. No payment to officers holding over.
166. Double salaries.
167. Holding two offices.
168. Compensation for extra service.
169. Extra allowances.
170. Pay of officers in arrears.
163. No money shall be paid from the Treasury to any
f°Feb. 9, 1863, c.Person acting or assuming to act as an officer, civil, mili-
25^8. 2, v. 12, p-tary, or naval, as salary, in any office when the office is not
sec. 1760, R. s. aut;horize(j by some previously existing law, unless such
office is subsequently sanctioned by law.3
1 See III. Comp., Dec., 65.
2 Repealed by the act of May 13, 1884 (23 Stat. L., 22).
3 An officer who is authorized to receive compensation "while necessarily
employed" only must produce satisfactory evidence of his employment, and the
necessity therefor, during the period for which he claims compensation. IV Compt.
Dec., 424.
MILITARY LAWS OF THE UNITED STATES. 65
164. No money shall be paid from the Treasury, as salary, N,° . salaries to
• 4. J j • .LI, /!i_ c. J ' certain appoint-
to any person appointed during tne recess or the Senate e?s todfi11. vacan-
to fill a vacancy in any existing office, if the vacancy ex- ce|?e°f ^ei™te-
isted while the Senate was in session and was by law re- ^ 8- 2> y- 12-' P-
quired to be filled by and with the advice and consent of Sec- 1761> K- *•
the Senate, until such appointee has been confirmed by the
Senate.
165. No money shall be paid or received from theTreas- Salaries toom-
J t r . cers imProperly
ury, or paid or received from or retained out of any public MJr^iS? c
moneys or funds of the United States, whether in theTreas- JjjJ- s- 9-'v- 14' P-
ury or not, to or by or for the benefit of any person ap- Sec- 1762' K- s-
pointed to or authorized to act in or holding or exercising
the duties or functions of any o'ffice contrary to sections *-,.,
seventeen hundred and sixt}^ seven to seventeen hundred
and seventy, inclusive; nor shall any claim, account,
voucher, order, certificate, warrant, or other instrument
providing for or relating to such payment, receipt, or reten-
tion be presented, passed, allowed, approved, certified, or
paid by any officer, or by any person exercising the func-
tions or performing the duties of any office or place of trust
under the United States, for or in respect to such office or
the exercising or performing the functions or duties thereof.
Every person who violates any of the provisions of this
section shall be deemed guilty of a high misdemeanor, and
shall be imprisoned not more than ten years, or fined not
more than ten thousand dollars, or both.
166. No person who holds an office the salary attached ne^16 sala"
to which amounts to the sum of two thousand five hundred ig^ioVioo.8'
dollars shall receive compensation for discharging the Sec*17 3'B-S>
duties of any other office, unless expressly authorized by
law.
167. No person who holds an office the salary or
compensation attached to which amounts to the sum
two thousand five hundred dollars shall be appointed to or jjj60^
hold any other office to which compensation is attached
unless specially heretofore or hereafter specially authorized
thereto by law; but this shall not apply to retired officers ex*|£tret°fficera
of the Army or Navy whenever they may be elected to
public office or whenever the President shall appoint them
to office, by and with the advice and consent of the Senate.1
Sec, 0, act of July 31, 1894 (#* Stat. Z., $06).
1 The traditions and usages of the United States recognize the policy and propriety
of employing, when necessary, the same person at the same time in two distinct
capacities. Not to mention other familiar cases, there are the prominent examples
of the diplomatic mission of MT, Jay to England, under President Washington, while
22924—08 5
66 MILITARY LAWS OF THE UNITED STATES.
Extra services, 168. No allowance or compensation shall be made to any
no compensation -,11 tf^ij.i ? j <• i_ • i.
for except espe- officer or clerk, by reason of the discharge of duties which
cially authorized ' J „ , . . ,, ' ,,
by law. belong- to any other officer or clerk in the same or any other
A lit? 26 1842
c. 202, s. i2,V. 5, pi Department; and no allowance or compensation shall be
Sec. 1764. K.S. made for &ny extra services whatever, which any officer or
clerk may be required to perform, unless expressly author-
ized by law.1
he was still Chief Justice of the United States; of the mission of Mr. Gallatin to
London and St. Petersburg, to negotiate a peace, while Secretary of the Treasury
under President Madison; and of Mr. Justice Nelson, sitting as *a member of the
commission which concluded the treaty of Washington, under President Grant. On
the other hand, it is the undoubted aim of general legislation respecting salaries to
gauge the work so as to give full employment to the capacities of the man likely to
be appointed to do it, and to measure the pay according to the work. In construing
statutes restraining the Executive from giving dual or extra compensation, courts
have aimed to carry out the legislative intent by giving them sufficient flexibility
not to injure the public service and sufficient rigidity to prevent Executive abuse.
Landram v. U. S., 16 Ct. Cls., 74, 82. The great object has been to establish by
law the compensation for public services, whether in offices or agencies, where the
nature and character of the duties to be performed were sufficiently known and
definite to enable Congress to form an estimate of its value and not leave it to the
discretion of the head of an Executive Department. * * * These sections "can
by no fair interpretation be held to embrace an employment which has no affinity or
connection, either in its character or by law or usage, with the line of his official
duty, and where the service to be performed is of a different character and for a dif-
ferent place and the amount of compensation is regulated by law. * * The just
and fair inference from these acts of Congress taken together is that no discretion
is left to the head of a Department to allow an officer, who has a fixed compensation,
any credit beyond his salary, unless the service he has performed is required by
existing laws and the remuneration for them is fixed by law." Converse v. U. S.,
21 How., 463, 470, 473; U. S. v. Brindle, 110 U. S., 688, 694; U. S. r. Shoemaker, 7
Wall., 338; Meigs v. U. S., 19 Ct. Cls., 497; XV Opin. Att. Gen., 608; 1 Compt. Dec.,
286; 2 ibid., 33; Crosthwaite v. U. S., 30 Ct. Cls., 300.
A question having arisen as to the payment of a per diem to the members and cer-
tain employees of the Bering Sea Tribunal of Arbitration, it was held: As to Justice
Harlan and Senator Morgan, that the terms of section 1763 of the Revised Statutes,
as amended by the act of July 31, 1894 (28 Stat. L., 205), did not apply, as they had
been appointed to separate and distinct offices not incompatible with the offices of
justice of the Supreme Court, Senator of the United States, and retired judge. Pay-
ments to them were therefore allowed. U. S. v. Saunders, 120 U. S., 126. As to
Senator Morgan, it was held that membership of a tribunal of arbitration did not con-
stitute the holding of office under the authority of the United States under Article I,
section 6, of the Constitution, and that Senator Morgan was not thereby prohibited
from sitting thereon. The payment of per diem allowances to clerks and other
regular employees of the United States, who had been detailed from the several
Executive Departments to assist the tribunal in its labors, was held to be unauthor-
ized under section 1765 of the Revised Statutes. Held, under this section, that a
major and paymaster in the Army, detailed as disbursing officer of the Bering Sea
Tribunal of Arbitration at Paris, could not receive any other allowances or emolu-
ments than those specified in this section as allowable to officers of the Army.
Compt. Dec., 1893-94, 275.
A compensation for extra services, where no certain allowance is fixed by law, can
not be paid by the head of a Department to any officer of the Government who has,
by law, a certain compensation in the office he holds. X Opin. Att. Gen., 31. The
various provisions of law forbidding extra allowance or additional pay for extra
service imply extra-service pay or allowance in the same office, not distinct service
in distinct offices. VIII Opin. Att. Gen., 325. Where the service is one required
by law, but not of any particular official, and compensation therefor is fixed by com-
petent authority, and is appropriated, any officer who, under due authorization,
performs the service is entitled to the compensation. XV Opin. Att. Gen. , 608. See
also Converse, admr., r. U. g., 21 How., 463; U. S. v. Shoemaker, 7 Wall., 338; Stans-
bury v. U. S., 8 Wall., 33; XIX Opin. Att. Gen., 121. But see for exception, section 7,
act of June 3, 1896 (29 Stat. L., 235) .
*Stansbury v. U. S., 8 Wall., 33.
MILITARY LAWS OF THE UNITED STATES. 67
169. No officer l in any branch of the public service, or Extra ai low-
any other person whose salary,2 pay,2 or emoluments 2 are "MM, 3, 1339, c.
fixed by law or .regulations, shall receive any additional AuJ.3^,'5^34?!
pay, extra allowance, or compensation, in any form what-sio! s'
ever, for the disbursement of public money, or for any
other service or duty whatever, unless the same is author-
ized by law and the appropriation therefor explicitly
states that it is for such additional pay, extra allowance,
or compensation.3
170. No money shall be paid to any person for his com- Officer in ar-
pensation who is in arrears * to the United States, until he Jan. 25, i828,c.
2, v. 4, p. 246
has accounted for and paid into the Treasury all sums for May 20', 1836, c'.
which he may be liable. In all eases where the pav or Sec. i766,B.s.
salary of any person is withheld in pursuance of this sec-
tion, the accounting officers of the Treasury, if required to
do so by the party, his agent or attorney, shall report forth-
with to the Solicitor of the Treasury the balance due, and
the Solicitor shall, within sixty days thereafter, order suit
to be commenced against such delinquent and his sureties.5
CRIMINAL OFFENSES.
Par.
177. Requesting political contributions
prohibited.
178. Consideration for obtaining office
prohibited.
179. Contributions for presents prohib-
ited.
Par.
171. Failure to make returns.
172. Political assessments.
173. Soliciting contributions.
174. The same, change of rank or com-
pensation.
175. Political contributions forbidden.
176. Penalty.
171. Every officer who neglects or refuses to make any Failure to make
. . . . ,e .r returns or re-
return or report which he is required to make at stated ports.
1 An officer is one who is invested with an office, and an office is authority, granted
by law, to exercise a function of Government. An employee is one who is employed
under a contract to perform personal service. An office is distinguished from a pub-
lic employment by the fact that in the one case the authority to perform a public
service is derived from the law, wThile in the other it is derived from a contract.
IV Compt. Dec., 696.
'^Salary is fixed when it is at a stipulated rate for a definite period of time; pay or
emolument is fixed when the amount is agreed upon and the service is defined.
Hedrick v. U. S., 16 Ct. Cls., 88.
3 Bee note to paragraph 167 supra. The provisions of section 1765, Revised Statutes,
which prohibit the payment of additional compensation, apply to two classes of per-
sons only, viz, officers in the public service and employees whose compensation is
fixed by law or regulations. IV Compt. Dec. 696. See, also, ibid., 424.
4 The phrase "who is in arrears to the United States," contained in the act of
January 25, 1828 (sec. 1766, Revised Statutes), applies only to persons who, having
had previous transactions of a pecuniary nature with the Government, are found,
upon the settlement of those transactions, to be in arrears. Ill Opin. Att. Gen., 52.
Where an officer of the Army assigned his pay accounts in payment of certain indebt-
edness, which accounts the Paymaster-General declined to pay, for the reason that,
on the maturity thereof, the officer was in arrears to the United States; held that
the refusal of the Paymaster-General was in accordance with section 1766 of the
Revised Statutes. XVII Opin. Att. Gen., 30.
5 See, as to effect on sureties, XX ibid., 447. This section does not apply to orig-
inal vacancies. XVIII ibid., 28; see, also, XVII ibid., 476.
68 MILITARY LAWS OF THE UNITED STATES.
July is, 1866, c. times by any act of Congress or regulation of the Depart-
m.9' P' ment of the Treasury, other than his accounts, within the
Sec. 1780 K. S.
' time prescribed by such act or regulation, shall be fined
not more than one thousand dollars and not less than one
hundred.
Apolitical assess- tf% ^o Senator, or Representative, or Territorial Dele-
ii ^Vp'S3' S' &ate °f tne Congress, or Senator, Representative, or Dele-
gate elect, or any officer or employee of either of said
Houses, and no executive, judicial, military, or naval officer
of the United States, and no clerk or employee of any
Department, branch, or bureau of the executive, judicial, or
military or naval service of the United States, shall, directly
or indirectly, solicit or receive, or be in any manner con-
cerned in soliciting or receiving, any assessment, subscrip-
tion, or contribution for any political purpose whatever
from any officer, clerk, or employee of the United States,
or any Department, branch, or bureau thereof, or Irom
any person receiving any salary or compensation from
moneys derived from the Treasury of the United States.
Sec. 11, act of January 16, 18,83 (22 Stat. L., IfiS).
soliciting con- 173. No person shall, in any room or building occupied
tributionsforpo- ' J
forbfddenurposes *n discharge of official duties by any officer or em-
sec. 12, ibid, ployee of the United States mentioned in this act, or in
any navy -yard, fort, or arsenal, solicit in any manner what-
ever, or receive any contribution of money or any other
thing of value for any political purpose whatever. 8ec.
12, ibid.
oi?o^gensaSon *^* ^° °^cer or employee of the United States men-
sec. 13, and. tioned in this act shall discharge, or promote, or degrade,
or in any manner change the official rank or compensation
of any other officer or employee, or promise or threaten so
to do, for giving or withholding or neglecting to make
any contribution of money or other valuable thing for
any political purpose.1 Sec. 13, ibid.
Political con tri- 175. No officer, clerk, or other person in the service of
butions forbid-
den, the United States shall, directly or indirectly, give or
Sec. 14, ibid. " , B
hand over to any other officer, clerk, or person in the
1 The rules promulgated by the President on November 2, 1896, providing for cer-
tain classifications and exceptions, and regulating promotions in the civil service, do
not regulate removals from office, except for political or religious opinions or affilia-
tions. Carr v. Gordon, 82 Fed. Rep., 373.
The civil-service law does not prohibit removal or discharge, except for giving,
withholding, or neglecting to make contributions of money for political purposes.
Morgan r. Nunn, 84 Fed. Rep., 551.
The power of removal is a purely executive power which is not intrusted to the
judicial branch of the Government. Keim v. U. S., 33 Ct. Cls., 174.
MILITABr LAWS OF THE UNITED STATES. 69
service of the United States, or to any Senator or Mem-
ber of the House of Representatives, or Territorial Dele-
gate, any money or other valuable thyig on account of or
to be applied to the promotion of any political object
whatever. Sec. H, ibid.
176. Any person who shall be pfuiltv of violating anv Penalty for vio-
. . £ ,, £ £ . ' ,. , ,, , J, lation of preced-
provision of the four foregoing sections shall be deemed ing sections.
.,,,., J *u n • x- j> Sec. 15, ibid.
guilty of a misdemeanor, and shall, on conviction thereof,
be punished by a fine not exceeding five thousand dol-
lars, or by imprisonment for a term not exceeding three
years, or by such fine and imprisonment both, in the dis-
cretion of the court. Sec. 15, ibid.
177. All executive officers or employees of the United et^equcontritm'
States not appointed by the President, with the advice ofOE
and consent of the Senate, are prohibited from requesting,
giving to, or receiving from, any other officer or employee
of the Government, any money or property or other thing
of value for political purposes; and any such officer or
employee, who shall offend against the provisions of this
section shall be at once discharged from the service of
the United States; and he shall also be deemed guilty of a
misdemeanor, and on conviction thereof shall be fined in
a sum not exceeding five hundred dollars. Sec. 6, act of
August 15, 1876 (19 Stat. L., 169}.
178. Every member of Congress or any officer or agent
of the Government who, directly or indirectly, takes, re-
ceives, or agrees to receive, any money, property, or other
valuable consideration whatever, from any person for pro-
curing, or aiding to procure, any contract, office, or place,
from the Government or any Department thereof, or from
any officer of the United States, for any person whatever,
or for giving any such contract, office, or place, to any per-
son whomsoever, and every person who, direct!}7 or indi-
rectly, offers or agrees to give, or gives, or bestows any
money, property, or other valuable consideration what-
ever, for the procuring or aiding to procure any such con-
tract, office, or place, and every member of Congress who,
directly or indirectly, takes, receives, or agrees to receive
any money, property, or other valuable consideration what-
ever after his election as such member, for his attention to,
services, action, vote, or decision on any question, matter,
cause or proceeding which may then be pending, or may
by law or under the Constitution be brought before him in
his official capacity, or in his place as such member of Con-
70
MILITAEY LAWS OF THE UNITED STATES.
gress, shall be deemed guilty of a misdemeanor, and shall
be imprisoned not more than two years and fined not more
than ten thousand dollars. And any such contract or
agreement may, at the option of the President, be declared
absolutely null and void; and any member of Congress or
officer convicted of a violation of this section, shall, more-
over, be disqualified from holding any office of honor, profit,
or trust under the Government of the United States.1
179- No officer, clerk, or employee in the United States
sup?r?ora etc'' to Government employ shall at any time solicit contributions
iiFvbi6' 1863* c ^ rom other officers, clerks, or emplo3^ees in the Government
Sec.i784,B.s. service for a gift or present to those in a superior official
position; nor shall any such officials or clerical superiors
receive any gift or present offered or presented to them
as a contribution from persons in Government employ re-
ceiving a less salary than themselves; nor shall any officer
or clerk make any donation as a gift or present to any offi-
cial superior. Every person who violates this section shall
be summarily dismissed from the Government employ.2
MISCELLANEOUS PROVISIONS.
Par.
180. Removal of office on account of sick-
ness, report.
181. Restriction on payments for news-
papers.
Par.
182. Preservation of Statutes at Large.
Removal of 180. Whenever any public office is removed by reason
Apr. 21, 1806, c. of sickness which may prevail in the town or city where it
41, s. 6, v. 2, p. 397. J J J
Sec. 1776, B.S. is located, a particular account of the cost of such removal
shall be laid before Congress.
up^plyments 181. No executive officer, other than the heads of De-
for n wspapers, partments, shall apply more than thirty dollars, annually,
82?sa3,'v.'5^9349'. ou^ °^ the contingent fund under his control, co pay for
sec. 1779, k.s. newspapers, pamphlets, periodicals, or other books or prints
not necessary for the business of his office.
1 Sections 1781 and 1782 of the Revised Statutes make it illegal for an officer of the
United States to have that sort of connection with a Government contract which an
agent, attorney, or solicitor assumes when he procures, or aids in procuring, such
contract for another, or when he prosecutes for another any claim against the Gov-
ernment founded thereon. XIV Opin. Att. Gen. , 483. But there is in the statutes no
general provision whereby officers of the executive branch of the Government are
forbidden to contract directly with the Government as principals, in matters sepa-
rate from their offices and in no way connected with the performance of their official
duties; nor are those officers forbidden to be connected with such contracts, after
they are procured, by acquiring an interest therein. Ibid.
2 This section was held to be constitutional by the Supreme Court in Ex parte
Curtis, 106 U. S., 371.
MILITARY LAWS OF THE UNITED STATES. 7l
182. The various officers of the United States to whom Preservation of
' copies of Statutes
in virtue of their offices and for the uses thereof, copies of at^arge.
the United States Statutes at Large, published by Little, '
Brown and Company, have been or may be distributed at
the public expense, by authority of law, shall preserve such
copies, and deliver them to their successors respectively as
a part of the property appertaining to the office. A printed
copy of this section shall be inserted in each volume of the
Statutes distributed to any such officers.
CHAPTER
THE DEPARTMENT OF THE TREASURY— THE
ACCOUNTING OFFICERS.
Par.
183. The Treasury Department.
184-189. Accounts.
190-193. The Accounting Officers; the
Comptroller of the Treasury.
194-214. The Auditors of the Treasury.
215-218. Accounts of line officers, etc.
219, 220. Claims; reports of claims al-
lowed.
221, 222. Claims of officers and enlisted
men for property lost or de-
stroyed.
223-230. Reimbursement of States for
expenses incurred in war with
Spain.
231, 232. Compromise of claims.
233. Set-off.
234. Assignment of claims.
235-244. Prosecution of claims.
245-247. Debts due by or to the United
States.
Par.
248, 249. Discharge of poor debtors.
250. Suits to recover balances due the
United States.
251-264. Distress warrants.
265-270. Estimates.
271-275. Appropriations.
276-278. Permanent annual appropria-
tions.
279-282. Application of balances.
283-290. The public moneys; the Treas-
urer; assistant treasurers, and
depositories.
291-295. Disbursing agents.
296-298. Transfer of funds by Secretary
of the Treasury.
299-304. Deposit of public money.
305-308. Tender.
309-312. Outstanding checks.
183. There shall be at the seat of Government an Execu-
Department to be known as the Department of the
The Depart-
ment of the
Treasury.
Sept. 2, 1789, c.
12sec1'2V38'&f'Treasury> an(l a Secretary of the Treasury, who shall be
the head thereof.
ACCOUNTS.
! Par.
| 188. Report of delinquent officers.
189. Annual report of receipts and ex-
penditures.
Par.
184. The fiscal year.
185. Rendition of accounts monthly.
186. Separate accounts required.
187. Transmission of accounts to Wash-
ington.
184- Tne fiscal year of the Treasury of the United States
*n a^ matters of accounts, receipts, expenditures, estimates,
636: SMayVi872' and appropriations, except accounts of the Secretary of
c' GiVar1 LISTS' ^e Senate for compensation and traveling expenses of Sen-
c^226,s.i,v.i7,p. ators,1 shall commence on the first day of July in each year;
see. 227, B. s. and aj} accounts of receipts and expenditures required by
law to be published annually shall be prepared and pub-
lished for the fiscal year as thus established. The fiscal
1For other statutory provisions in relation to accounts, see the titles " The Comp-
troller of the Treasury" and " The Auditors of the Treasury" in the chapter entitled
THE TREASURY DEPARTMENT, and the title ' ' Disbursing Officers ' ' in the chapter entitled
THE STAFF DEPARTMENTS.
72
men0t?f?hlfiscli
yelug 26 1842 c
MILITARY LAWS OF THE UNITED STATES. 73
year for the adjustment of the accounts of the Secretary
of the Senate for compensation and traveling expenses of
Senators * shall extend to and include the third day of July. l
185. Every officer or agent of the United States who
receives public money which he is not authorized to retain ly>
as salary, pay, or emolument, shall render his accounts
monthly. Such accounts, with the vouchers necessary tof^
the correct and prompt settlement thereof, shall be sent by
mail or otherwise to the Bureau to which they pertain im3* ;69Fvbi92p'
within ten days after the expiration of each successive 24|ec 12 actjuly
month, and after examination there shall be passed to the ^ 1894> v- 28> p-
proper accounting officer of the Treasury for settlement. Sec> 3622» B* s-
Disbursing officers of the Navy shall, however, render their
accounts and vouchers direct to the proper accounting offi-
cer of the Treasury. In case of the nonreceipt at the Treas-
ury or proper Bureau of any accounts within a reasonable
and proper time thereafter, the officer whose accounts are
in default shall be required to furnish satisfactory evidence
of having complied with the provisions of this section.
Nothing herein contained shall, however, be construed to
restrain the heads of any of the Departments from requir-
ing such other returns or reports from the officer or agent,
subject to the control of such heads of Departments, as
the public interest may require.
186. All officers, agents, or other persons receiving public
moneys, shall render distinct accounts of the application
thereof according to the appropriation under which the Sec- 3623' B- s-
same may have been advanced to them.
187. All monthly accounts shall be mailed or other wise of
sent to the proper officer at Washington within ten days
after the end of the month to which they relate, and quar-
terly and other accounts within twenty days after the pe- 31> P- 91°-
riod to which they relate, and shall be transmitted to and
received by the Auditors within sixty days of their actual
receipt at the proper office in Washington in the case of
monthly, and sixty days in the case of quarterly and other
accounts. Should there be any delinquency in this regard di^lp^e ™eaqy_
at the time of the receipt by the Auditor of a requisition
for an advance of money, he shall disapprove the requisi-
tion, which he may also do for other reasons arising out of
the condition of the officer's accounts for whom the ad-
vance is requested; but the Secretary of the Treasury may
*For other statutory provisions in relation to accounts, see the titles " The Comp-
troller of the Treasury" and "The Auditors of the Treasury" in the chapter entitled
THE TREASURY DEPARTMENT, and the title "Disbursing Officers" in the chapter entitled
THE STAFF DEPARTMENTS.
74 MILITARY LAWS OF THE UNITED STATES.
overrule the Auditor's decision as to the sufficiency of these
£SSary of latter reasons : Provided, That the Secretary of the Treasury
t^esJribeSU7uiess^a^Prescr^esu^^eru^es an(^ regulations, and may make
accountsitkm °f orders in particular cases, relaxing the requirement of mail-
ing or otherwise sending accounts, as aforesaid, within ten
or twenty days, or waiving delinquency, in such cases only
in which there is, or is likely to be, a manifest physical
difficulty in complying with the same, it being the purpose
of this provision to require the prompt rendition of accounts
without regard to the mere convenience of the officers, and
to forbid the advance of money to those delinquent in
m?ttYngn8ac- render ing them: Provided further, That should there be a
counts. delay by the administrative Departments beyond the afore-
said twenty or sixty days in transmitting accounts, an order
of the President [or, in the event of the absence from the
seat of Government or sickness of the President, an order
of the Secretary of the Treasury] in the particular case
shall be necessary to authorize the advance of money re-
quested: And provided further, That this section shall not
apply to accounts of the postal revenue and expenditures
therefrom, which shall be rendered as now required by law.1
Sec. 1%, act of July 31, 189 Jf, (28 Stat. L. , 209); act of March
0, 1901 (31 ibid., 910).
TrSr^to re* 188« The Secretary of the Treasury shall, on the first
officerselinquent Monday of January in each year, make report to Congress
!8%,Cv429fpfi79! °f such officers and administrative departments and offices
of the Government as were, respectively, at any time dur-
ing the last preceding fiscal year delinquent in rendering
or transmitting accounts to the proper offices in Washing-
ton and the cause therefor, and in each case indicating
whether the delinquency was waived, together with such
officers, including postmasters and officers of the Post-
Office Department, as were found upon final settlement of
their accounts to have been indebted to the Government,
with the amount of such indebtedness in each case, and
who, at the date of making report, had failed to pay the
same into the Treasury of the United States.2 Sec. 4-) act
of May 28, 1896 (29 Stat. Z., 179).
of rece?ptseand 189. It shall be the duty of the Secretary of the Treas-
exj5y si/iSi, s. ury annually to lay before Congress, on the first day of
the regular session thereof, an accurate, combined state-
1 Amended by the insertion of the clause in brackets by section 4 of the act of
March 2, 1895. (28 Stat. L., 817.)
2 Section 8 of the act of July 31, 1894, provides "that the balances that maybe cer-
tified from time to time by the auditors in the settlement of public accounts shall be
final and conclusive upon the Executive Departments of the Government, except that
MILITARY LAWS OF THE UNITED STATES.
75
ment of the receipts and expenditures during- the last pre-
ceding fiscal year of all public moneys, including those
of the Post-Office Department, designating the amount of
the receipts, whenever practicable, by ports, districts, and
States, and the expenditures, by each separate head of
appropriation. Sec. 15, act of July 31, 189 J^ (28 Stat.
L.,%10).
THE ACCOUNTING OFFICERS.
THE COMPTROLLER OF THE TREASURY.
Par.
190. The Comptroller of the Treasury.
191. To prescribe forms of accounts.
Par.
192. Decisions to be final.
193. May direct settlement of particular
accounts.
190. The offices of Commissioner of Customs, Deputy The comptroi-
Commissioner of Customs, Second Comptroller, Deputy ury?
Second Comptroller, and Deputy First Comptroller of i894,Cv.28,p.205.'
the Treasury are abolished, and the First Comptroller of
the Treasury shall hereafter be known as Comptroller
of the Treasury. He shall perform the same duties and
have the same powers and responsibilities (except as modi-
fied by this act) as those now performed by or appertain-
ing to the First and Second Comptrollers of the Treasury
and the Commissioner of Customs; and all provisions of
law not inconsistent with this act, in any way relating to
them or either of them, shall hereafter be construed and
held as relating to the Comptroller of the Treasury. His
salary shall be five thousand five hundred dollars per an-
num. There shall also be an Assistant Comptroller of the
Treasury, to be appointed by the President, with the ad-
vice and consent of the Senate, who shall receive a salary
any person whose accounts may have been settled, the head of a Department, or of
the board, commission, or establishment, not under the jurisdiction of an Executive
Department, or the Comptroller of the Treasury may, within a year, obtain a revision
of the account by the Comptroller of the Treasury, whose decision upon such revision
shall be final and conclusive upon the executive branch of the Government: Pro-
vided, That the Secretary of the Treasury may, when in his judgment the interests
of the Government require it, suspend payment and direct the reexamination of any
account." Sec. 8, act of July 31, 1894 (28 Stat. L., 207).
Section "260 of the Revised Statutes requires that the Secretary of the Treasury
shall lay before Congress at the commencement of each regular session, accompany-
ing his annual statement of the public expenditure, the reports which may be made
to him by the Auditors charged with the examination of the accounts of the Depart-
ment of War and the Department of the Navy, respectively, showing the application
of the money appropriated for those Departments for the> preceding year.
This enactment replaces section 12, act of July 31, 1894, in pari materia.
Under authority conferred by this section and by the act of December 20, 1899 (31
Stat. L., 1), the Secretary of the Treasury has relaxed the requirements of paragraph
627 of the Army Regulations by extending the time of mailing to the 20th day of
each month. See the title Accounting in the chapter entitled THE STAFF DEPART-
MENTS; see, also, G. O. 211, A. G. O., of 1899, and G. 0. 42, A. G. 0., of 1900.
MILITARY LAWS OF THE UNITED STATES.
present
etc.
Sec. 5, ibid.
of five thousand dollars per annum,1 and a chief clerk in
the office of the Comptroller of the Treasury, who shall
receive a salary of two thousand five hundred dollars per
annum. Sec. 4, act of July 31, 1894 (®$ Stat. L., 205}.
191. The Comptroller of the Treasury shall, under the
direction of the Secretary of the Treasury, prescribe the
forms of keeping and rendering all public accounts, except
those relating to the postal revenues and expenditures
therefrom. 2 Sec. 5, ibid.
192. Disbursing officers, or the head of any Executive
Department, or other establishment not under any of the
Executive Departments, may apply for and the Comptroller
of the Treasury shall render his decision upon any question
involving a payment to be made by them or under them,
which decision, when rendered, shall govern the Auditor
and the Comptroller of the Treasu^ in passing upon the
account containing said disbursement. Sec. #, ibid.
193. The Comptroller of the Treasury, in any case where,
opinion, the interests of the Government require it,
r J28lyp.3206 1894> sna11 direct any of the auditors forthwith to audit and
lee! 27VB. s. settle any particular account which such auditor is
authorized to audit and settle. Sec. 6\ ibid.
ern accounts.
Sec. 8, ibid.
Comptroller
may direct settle-
ment of particu- jn
lar accounts.
THE AUDITORS OF THE TREASURY.
Par.
194. The Auditors, general duties.
195,196. Auditor for the War Depart-
ment, duties.
197. Recovery of debts.
198. Certificates of balances; revision.
199. Reexamination of accounts.
200. Certificate of differences on revision.
201. Settlements of accounting officers
conclusive.
202. Examination of claims.
203. Revision of decisions by Comptroller.
204. To preserve accounts.
205. Transcripts as evidence.
Par.
206. Settled claims not to be reopened.
207. Rules by Secretary of Treasury.
208. Rules by heads of Departments.
209. Requisitions, warrants, advances.
210. Division of Bookkeeping and War-
rants.
211. Offices of Comptroller and Auditors
not new.
212. Transfer of duties.
213. Date of operation of new system.
214. Books and papers in District of
Columbia to be accessible to ac-
counting officers.
Auditors of
the Treasury.
1894, v. 2
194. The Auditors of the Treasury shall hereafter be
y206.' designated as follows: The First Auditor as Auditor for
*By instructions of the Comptroller of the Treasury, issued under the authority con-
ferred by section 4, act of July 31, 1894 (28 Stat. L., 205), it was ordered that all
questions arising in the Departments of War, Navy, and the Interior should be
decided by the Assistant Comptroller. Order of Comptroller of January 19, 1898, IV
Compt. Dec., 726.
2 So much of section 248, Revised Statutes, as authorizes the Secretary of the
Treasury to prescribe the forms of keeping and rendering all public accounts, except
those relating to the postal revenue and expenditures therefrom, is, by section 5 of
the act of July 31, 1894, vested in the Comptroller of the Treasury. 28 Stat. L., 206.
MILITARY LAWS OF THE UNITED STATES. 77
the Treasury Department; the Second Auditor as Auditor
for the War Department; the Third Auditor as Audi-
tor for the Interior Department; the Fourth Auditor as
Auditor for the Navy Department; the Fifth Auditor
as Auditor for the State and other Departments; the
Sixth Auditor as Auditor of the Post-Office Department.
The designations of the deputy auditors and other subordi-
nates shall correspond with those of the Auditors. And Duties-
each deputy auditor, in addition to the duties now required
to be performed by him, shall sign, in the name of the
Auditor, such letters and papers as the Auditor may
direct. Sec. 3, act of July 31, 189 Jf. (28 Stat. Z., 206}.
195. Accounts shall be examined by the Auditors as fol- WarudiD°eP al-
lows: * * * Second. The Auditor for the War Depart- m<g*- 7 {Md
ment shall receive and examine all accounts of salaries and
incidental expenses of the office of the Secretary of War
and all bureaus and offices under his direction, all accounts1
relating to the military establishment, armories and arse-
nals, national cemeteries, fortifications, public buildings
and grounds under the Chief of Engineers, rivers and har-
bors, the Military Academy, and to all other business
within the jurisdiction of the Department of War, and
1 Under the provisions of the act of July 31, 1894, the Comptroller of the Treasury
is authorized to render decisions, in advance of the settlement of accounts, only upon
the request of a disbursing officer or the head of an Executive Department, as pro-
vided in section 8 of said act. 1 Compt. Dec., 87.
Under section 8 of the act of July 31, 1894, the Comptroller of the Treasury is
authorized to render decisions, on the application of a disbursing officer or the head
of an Executive Department, only upon questions involved in payments to be made
by them or under them, and until the head of a Department having control of an
appropriation determines to apply it to a particular purpose there is no question
which can be properly submitted for the Comptroller's decision. Ibid., 89. Ibid.,
31, 139. The Comptroller is not authorized to render a decision at the request of
the Secretary of the Treasury when the question involved concerns the use of an
appropriation under the control of the Secretary of War. Ibid., 317.
When an expense has not yet been incurred, and a decision of the Comptroller is
desired for the guidance of a Department, the request therefor should be presented
by the head of the Department having control of the appropriation, and not by the
disbursing officer. Ibid., 500.
Under section 8 of this statute, authorizing an application by the head of an
Executive Department to the Comptroller of the Treasury for the revision of an
account settled by an Auditor, the Comptroller has no jurisdiction to entertain such
an application when made by the head of a bureau of a Department. Ibid., 199.
Nor can such a decision be rendered upon the application of an Auditor. Ibid., 78;
4 ibid., 653, 727.
Bequests for the decision of the Comptroller under section 8 of the act of July 31,
1894, must be made by the disbursing officer himself, and not by an attorney author-
ized to represent him in the settlement of his account. Ibid., 502. The Comptroller
is authorized to render a decision upon the request of a disbursing officer only when
the question submitted is one involved in a payment which he has been directed, by
general or special order, to make. Ibid., 500.
Under the act of July 31, 1894, the Auditors of the Treasury are not authorized to
render decisions in advance of the settlement of accounts, such authority being, by
section 8 of said act, granted only to the Comptroller of the Treasury. Compt.
Dec., 94.
78 MILITARY LAWS OF THE UNITED STATES.
certify the balances arising thereon to the Division of
Bookkeeping and Warrants, and send forthwith a copy of
each certificate to the Secretary of War.1 Sec. 7, ibid.
Auditors to re- 196. The Auditors, under the direction of the Comptroller
cover debts.
sec. 4, ibid, of the Treasury, shall superintend the recovery of all
debts finally certified by them, respectively, to be due to
the United States. Sec. h ibid.
Duties of Audi- 197. The Auditors charged with the examination of the
Navy0 Depart- accounts of the Departments of War and of the Navy
Mar.' 3, isiv, c. shall keep all accounts of the receipts and expenditures of
so?88' P' the public money in regard to those Departments, and of
k ' all debts due to the United States on moneys advanced
relative to those Departments; shall receive from the
Comptroller the accounts which shall have been finally
adjusted, and shall preserve such accounts, with their
vouchers and certificates, and record all requisitions
drawn by the Secretaries of those Departments, the exam-
ination of the accounts of which has been assigned to them.
They shall annually, on the first Monday in November,
severally report to the Secretary of the Treasury the appli-
cation of the money appropriated for the Department of
War and the Department of the Navy, and they shall make
such reports on the business assigned to them as the Sec-
retaries of those Departments may deem necessary and
require.
certified bai- 198. The balances which may from time to time be cer-
onExecutiveDe- tified by the Auditors to the Division of Bookkeeping and
partments, etc. A
sec. s, ma. Warrants, or to the Postmaster-Greneral, upon the settle-
ments of public accounts, shall be final and conclusive upon
Revision. the Executive branch of the Government, except that any
person whose accounts may have been settled, the head
of the Executive Department, or of the board, commission,
or establishment not under the jurisdiction of an Execu-
tive Department, to which the account pertains, or the
Comptroller of the Treasury, may, within a year, obtain
a revision of the said account by the Comptroller of the
Treasury, whose decision upon such revision shall be final
lrThe act of July 16, 1892, contained the following requirement: "Hereafter nothing
in section two hundred and seventy-seven of the Revised Statutes shall be so con-
strued as to prevent the Second Auditor of the Treasury from disallowing claims for
arrears of pay and bounty in cases where it appears from the records and files of his
office that payment in full has already been made to the soldier himself, or to his
widow or legal heirs: Provided, That if any person whose claim may be disallowed
be dissatisfied with the action of the Auditor, he may, within six months, appeal to
the Second Comptroller; otherwise the Auditor's action shall be deemed final and
conclusive and' be subject to revision only by Congress or the proper courts." (27
Stat. L., 194. ) See 4 Compt. Dec., 471.
MILITAEY LAWS OF THE UNITED STATES. 79
and conclusive upon the Executive Branch of the Govern-
ment.1
199. The Secretary of the Treasury may, when in his .Reexamina-
judgment the interests of the Government require it, sus-
pend payment and direct the reexamination of any account.
* * * Sections one hundred and ninety-one and two
hundred and seventy of the Revised Statutes are repealed.
Sec. 8, ibid.
200. Upon a certificate by the Comptroller of the Treas- certificate of
' . , , * . . A. differences on re-
ury of any differences ascertained by mm upon revision, the vision.
Auditor who shall have audited the account shall state an
account of such differences and certify it to the division
of bookkeeping and warrants, except that balances found
and accounts stated as aforesaid by the Auditor for the Post-
Office Department for postal revenues and expenditures
therefrom shall be certified to the Postmaster -General.
Sec. 8, ibid.
201. Any person accepting pavment under a settlement Accepting pay-
, • " . . ment on Audi-
bv an auditor shall be thereby precluded trom obtaining1 a tor's settlement
J . 1.1 conclusive.
revision of such settlement as to any items upon which pay-
ment is accepted; but nothing in this act shall prevent an
Auditor from suspending items in an account in order to !ecP8n£T'
1This paragraph expressly repeals section 1 of the act of March 30, 1868 (sec. 191,
Rev. Stat. ) . The clause ' ' shall be conclusive upon the Executive Departments of
the Government," which formed a part of the repealed section, was enacted to settle
a long-pending dispute between the accounting officers and the heads of departments
as to their respective powers over claims and accounts, and has been interpreted to
relate ' ' only to matters of accounting in the Treasury Department, and of ascertain-
ing the balance in each particular account which shall be drawn from the Treas-
ury. * * It makes conclusive upon the executive branch of the Government
only the ' balances ' stated by the accounting officers and their ' decision thereon '
for the purpose of determining for what amounts, if any, warrants may be drawn
on the Treasury. * * * It does not make such decisions conclusive upon the
head of a department in the exercise of his discretion as to orders to be issued to
his subordinates in such connections as the one now under consideration. ' ' Billings v.
U. S., 23 Ct, Cls., 166; McKee v. United States, 12 ibid., 504. It was held in the case
of Surgeon Billings (23 Ct. Cls., 166) that the War Department had authority to
send a surgeon to the International Medical Congress at London at the expense of
the Government, that being a military service which a surgeon could be required to
render. In the case of Paymaster Smith (24 Ct. Cls., 209) it was held that the
employment of experts before a court-martial was within the legal and proper dis-
cretion of the Secretary of War. In the case of the United States v. Jones (18 How.,
92, 95) the court held "that the Secretary of the Navy represents the President and
exercises his power on the subjects confided to his Department. He is responsible
to the people and to the law for any abuse of the powers intrusted to him. His acts
and decisions on subjects submitted to his jurisdiction and control by the Constitu-
tion and laws do not require the approval of any officer of any other department to
make them valid and conclusive. The accounting officers of the Treasury have not
the burden cast upon them of reviewing the judgments, correcting the supposed mis-
takes, or annulling the orders of the heads of departments." See, also, U. 8. .v.
Mi-Daniel, 7 Pet., 1, 14; U. S. v. Eliason, 16 Pet,, 291; Brownv. U.S., 113 U. S.,568, 571;
Edwards v. Darby, 12 Wheat., 206; U. S. v. Pugh, 99 U. S., 265; Parkhurst v. U. S.,
29 Ct. Cls., 399. .
When the Government is estopped from further controverting a question adpdi-
cated by a court of competent jurisdiction it is the duty of the accounting officers
80 MILITARY LAWS OF THE UNITED STATES.
obtain further evidence or explanations necessary to their
settlement. When suspended items are finally settled, a
revision may be had as in the case of the original settle-
ment. Action upon any account or business shall not be
delayed awaiting applications for revision: Provided,
That the Secretary of the Treasury shall make regula-
tions fixing the time which shall expire before a warrant
is issued in payment of an account certified as provided
in sections seven and eight of this act. Sec. 8, ibid.
Examination 202. In the case of claims presented to an Auditor which
of certain claims. • ...
sec.i4,*trf. have not had an administrative examination, the Auditor
shall cause them to be examined by two of bis subordinates
independently of each other. Sec. 11+, ibid.
be 203> -^11 decisions by Auditors making an original con-
struction or modifying an existing construction of statutes
sec. s, ibid. shall be forthwith reported to the Comptroller of the Treas-
ury, and items in any account affected by such decisions
shall be suspended and payment thereof withheld until the
Comptroller of the Treasury shall approve, disapprove,
or modify such decisions and certify his actions to the
Auditor. All decisions made by the Comptroller of the
to follow the decision in subsequent settlements of the parties' accounts. The legis-
lation of Congress and the decisions of the Supreme Court unmistakably indicate
that judgments of this court, not appealed from, are obligatory upon the Govern-
ment as upon the claimant, and are intended to be guides and precedents for the
Executive Departments. Meigs v. U. S., 20 Ct. Cls., 181; U. S. v. O'Grady, 22
Wall., 641; Wis. Cent. R. R. Co. v. U. S., 164 U. S., 190. •
Under section 8 of the act of July 31, 1894, an appeal will not lie to the Comptroller
of the Treasury except from the final certificate of an auditor. A suspension of action
upon a case by an auditor is not a final decision of such officer. Ibid. , 381. An appeal
to the Comptroller from the action of an auditor will not lie until the auditor has taken
final action in the case. A suspension for further evidence is not a final decision upon
which an appeal can be based. I Compt. Dec., 448, 500.
In a case where the Auditor for the War Department disallowed the claim of a
soldier for pay and allowances upon the ground of desertion, and, subsequent to said
settlement, the Secretary of War has removed the charge of desertion and issued a
discharge certificate under the act of March 2, 1889: Held, That the application for
pay and allowances upon said amendment of record is a new claim, coming within
the jurisdiction of the Auditor for the War Department, and is not to be regarded as
an appeal under section 8, act of July 31, 1894, or an application for a rehearing. Ill
Compt. Dec., 144; IV ibid., 303, 332, 471, 622, 723.
Under the act of July 31, 1894, an auditor has no jurisdiction to review his own final
action in the settlement of an account, but such settlement can be reopened only on
a revision thereof by the Comptroller of the Treasury within a year, as provided in
section 8 of said act. I Compt. Dec., 27. See, also, ibid., pp. 31, 78, 87, 139, 199,
317, 381, 448, 500, 502; II ibid., pp. 4, 401, 510.
Where an auditor disallows certain items in an account which have been allowed
claimant by a paymaster, it amounts to a formal settlement of the account of such
claimant, from which an appeal may be taken under section 8 of the act of July 31,
1894. II Compt. Dec., 4. Under section 8 of the act of July 31, 1894, appeals from
disallowances by the auditors must be taken within a year from the date of the settle-
ment. If taken after the expiration of a year, the Comptroller is without jurisdiction
to entertain the appeal. Ibid., 510.
For a prohibition of the payment, by deduction from balance found due, of attor-
neys' fees in certain cases, see paragraph 222, post.
MILITARY LAWS OF THE U1S1TED STATES. 81
Treasury under this act shall be forthwith transmitted to
the Auditor or Auditors whose duties are affected thereby.
Sec. 8, ibid.
204. The auditors shall, under the direction of the Comp- Auditors to pre-
j. , , m F serve accounts.
troller of the Ireasury, preserve with their vouchers and sec.8,t&td.
certificates all accounts which have been finally adjusted.
Sec. 8, ibid.
205. The transcripts from the books and proceedings of certification of
the Department of the Treasury, and the copies of bonds, etc!*
contracts, and other papers, provided for in section eight Beo.i7.AM.
hundred and eighty -six of the Revised Statutes,1 shall here- i895,Cv.28 p.8092
after be certified by the Secretary or an Assistant Secre-
tary of the Treasury under the seal of the Department.
Sec. 17, ibid. , as amended by sec. 10, act of March #, 1895
(28 Stat. L.,809).
206. Nothing in this act shall be construed to authorize settled claims
,, ,. j „ , . not reopened.
the reexarnmation and payment of any claim or account sec.23,iwd.
which has heretofore been disajlowed or settled.2 Sec. %3,
ibid.
207. It shall be the duty of the Secretary of the Treas- secretary of
, . , -. , . . . Treasury to
ury to make appropriate rules and regulations for carrying make rules for
• • £ xi_ • J £ *"•• new methods of
out tne provisions or this act, and tor transferring or pre- accounting, etc.
V , • A • • Sec.22,i6id.
serving books, papers, or other property appertaining to
any office or branch of business affected by it. Sec. 2%,
ibid.
1 Paragraph 1820, post.
2 The accounting officers have no jurisdiction to reopen settlements made by their
predecessors, because a subsequent decision of the courts has so changed the con-
struction of the law under which the settlements were made as to warrant a different
result in the settlements. 2 Compt. Dec., 401.
Settled accounts in the Treasury Department, where the United States have acted
on the settlement and paid the balance therein found due, can not be opened or set
aside years afterwards merely because some of the prescribed steps in the accounting
which it was the duty of a head of a department to see had been taken had in fact
been omitted, or on account of technical irregularities when the remedy of the party
against the United States is barred by the statute of limitation and the remedies of
the United States are intact, owing to its not being subject to an act of limitation.
U. S. v. Johnston, 124 U. S., 236, 1 Compt. Dec., 192.
The act of July 31, 1894, does not take from the accounting officers the right to
reopen accounts 'which have been settled, either by themselves or their predecessors,
for the purpose of correcting mistakes of fact arising from errors of calculation, or
upon the production of newly discovered material evidence, or for fraud or collusion.
4 Compt. Dec. , 303. But see 1 ibid. , 27; 2 ibid., 210. The Comptroller has the exclu-
sive right to reopen an account which has been revised by himself or his predeces-
sors. 4 ibid., 303. Before the expiration of a year the right of revision by the
Comptroller is exclusive, and an Auditor can not reopen an account within that
period. After the expiration of a year from the date of settlement, an Auditor has
the exclusive right to reopen an account settled by himself or his predecessors. Ibid.
Under section 8 of the act of July 31, 1894, the Comptroller of the Treasury is
authorized to revise, upon his own motion, all items embraced in an account, includ-
ing items upon which payment has been accepted; and, in particular instances, where
justice requires it, such authority may be exercised in favor of a claimant. 4 Compt.
Dec., 623.
22924-08 6
82 MILITARY LAWS OF THE UNITED STATES.
Rules, etc., by 208. It shall also be the duty of the heads of the several
heads of depart- T>k , f , „
ments, etc. E/xecutive Departments and ot the proper othcers or other
Government establishments, not within the jurisdiction of
any Executive Department, to make appropriate rules and
regulations to secure a proper administrative examination
of all accounts sent to them, as required by section twelve
of this act, before the transmission to the Auditors, and
for the execution of other requirements of this act in so
far as the same relate to the several departments or estab-
lishments. Sec. 2%, ibid.
REQUISITIONS FOR FUNDS.
Requisitions 209. Every requisition for an advance of money1 before
funds. being acted on by the Secretary of 0 the Treasury, shall be
sent to the proper Auditor for action thereon as required
by section twelve of this act.
warrants. All warrants, when authorized by law and signed by the
Secretary of the Treasury; shall be countersigned by the
Comptroller of the Treasury, and all warrants for the pay-
ment of money shall be accompanied either by the Audi-
tor's certificate, mentioned in section seven of this act, or by
the requisition for advance of money, which certificate or
requisition shall specify the particular appropriation to
which the same should be charged, instead of being speci-
fied on the warrant, as now provided by section thirty-six
hundred and seventy -five of the Revised Statutes; and
shall also go with the warrant to the Treasurer, who shall
return the certificate or requisition to the proper Auditor,
with the date and amount of the draft issued indorsed
thereon. Requisitions for the payment of money on all
audited accounts, or for covering money into the Treasury,
shall not hereafter be required. And requisitions for
advances of money shall not be countersigned by the Comp-
troller of the Treasury. Sec. 11, ibid.
DIVISION OF BOOKKEEPING AND WARRANTS.
The Division 210. The Division of Warrants, Estimates, and Appro-
of -Bookkeeping
and warrants, priations in the office of the Secretary of the Treasury is
hereby recognized and established as the Division of Book-
keeping and Warrants. It shall be under the direction of
1 Section 8 of the act of July 31, 1894, has no application to the questions respecting
the advance of funds which, under this section, are subject to the decision of the
Auditor, with a review by the Secretary of the Treasury. 1 Compt. Dec., 409.
MILITARY LAWS OF THE UNITED STATES. 83
the Secretary of the Treasury as heretofore. Upon the
books of this division shall be kept all accounts of receipts
and expenditures of public money except those relating to
the postal revenues and expenditures therefrom; and sec-
tions three hundred and thirteen and so much of sections
two hundred and eighty -three and thirty-six hundred and
eighty-five of the Revised Statutes as require those accounts
to be kept by certain Auditors and the Register of the
Treasury are repealed. The duties of the Register of the
Treasury shall be such as are now required of him in con-
nection with the public debt and such further duties as
may be prescribed by the Secretary of the Treasury. Sec.
10, ibid.
MISCELLANEOUS PROVISIONS.
211. This act,1 so far as it relates to the First Comptroller
of the Treasury and the several Auditors and Deputy
Auditors of the Treasury, shall be held and construed to
operate merely as changing their designations and as
adding to and modifying their duties and powers, and not
as creating new officers. Sec. 9, ibid.
212. All laws not inconsistent with this act,1 relating to tie7ta0nf^ $£'
the Auditors of the Treasury in connection with any mat- sec.9,iwa.
ter shall be understood in each case to relate to the Audi-
tor to whom this act assigns the business of the Executive
Departments or other establishments concerned in that
matter. Sec. 9, ibid.
213. The provisions of sections three to twentv-three New account-
^ ing system in
inclusive of this act l shall be in force on and after the first force October i,
day of October, eighteen hundred and ninety -four.2 Sec. sec. 24, md.
24, ibid.
1 Act of July 31, 1894 (28 Stat. L., 206).
2 The act of July 31, 1894, also contained the requirement that "all accounts stated
by the Auditors before the 1st day of October, 1894, and then pending for settle-
ment in the offices of the First or Second Comptroller, or the Commissioner of Cus-
toms, shall be revised by the Comptroller of the Treasury in the manner provided by
existing law, and the balances arising thereon shall be certified to the Division of
Bookkeeping and Warrants." Sec. 21, act of July 31, 1894, 28 Stat. L., 206.
For section 3 of the act of July 31, 1894, see paragraph 194; for section 4 of the same
statute see paragraph 196; for section 5 see paragraph 195; for section 6 see paragraph
193; for section 7 see paragraph 195; for section 8 see paragraphs 199, 200, 201, 203,
204, and for section 9 see* paragraphs 211 and 212; for section 10 see paragraph 210;
for section 11 see paragraph 209; for section 12 see paragraphs 185 and 187; for section
14 see paragraph 202; for section 17 see paragraph 205; for section 22 see paragraphs
207 and 208; for section 23 see paragraph 206. Section 13 relates to the accounts of
certain subordinate officers of the Department of Justice; section 15 to an annual
report of expenditures to be rendered to Congress by the Secretary of the Treasury;
sections 16, 18, and 19 amend sections 307, 2639, and 3743 of the Revised Statutes;
section 20 relates to the duties of collectors of customs.
84 MILITARY LAWS OF THE UNITED STATES.
214< AH books, papers, and other matters relating to the
tfSierbnd°AS- accounts °f officers of the Government in the District ol
Columbia shall at all times be subject to inspection and ex-
s. 5, v. so, p. 316. animation by the Comptroller of the Treasury and the
Auditor of the Treasury authorized to settle such accounts,
or by the duly authorized agents of either of said officials. *
Sec. 5, act of March 15, 1898 (30 Stat. Z., 316).
ACCOUNTS OF LINE OFFICERS AND PAYMASTERS.
Par.
215. Settlement of accounts of line offi-
cers.
216. Same of paymasters for advance
bounties.
Par.
217. Overpayments by paymasters.
218. Return of discharge certificates.
215« The Auditor of the Treasury for the War Depart-
ent shall audit and settle the accounts of line officers of
Res. NO. 22,v.i5fhe Army, to the extent) of the pay due them for their
Sec. 278, B. s. servjces as sucn) notwithstanding the inability of any such
line officer to account for property intrusted to his pos-
session, or to make his monthly reports or returns, if such
Auditor shall be satisfied by the affidavit of the officer or
otherwise that the inability was caused by the officer's
having been a prisoner in the hands of the enemy, or by
any accident or casualty of war.2
settlement of 216. Any moneys paid by a paymaster in the Army to
advance boun- ^ ^ r •* L •* *
ties paid by pay- an enlisted man as an advance bounty shall be allowed in
masters.
78Msar63v18i23' c- the settlement of the accounts of the paymaster, notwith-
74|ec aso B s s^an(^mR the discharge of such enlisted man before serving
the time required by law to entitle him to payment of such
moneys.
settlement of 217. The proper accounting officers are authorized, in the
overpayments by
paSai6ili868 c settlement of the accounts of the paymasters of the Army,
29sv' ^sF' B2' s ^° a^ow sucn credits for overpayments made in good faith
on public account, since the fourteenth day of April, eight-
een hundred and sixty-one, and before the sixteenth day
of March, eighteen hundred and sixty-eight, as shall appear
to them, by such vouchers and testimony as they shall
require, to be just.3
1This enactment replaces a similar provision in the act of February 19, 1897 (29
Stat. L., 550).
2 The duties of the Second Auditor of the Treasury were * by section 7 of the act of
July 31, 1894 (28 Stat. L., 206), devolved on the Auditor of the Treasury for the War
Department.
3 The first section of the act of June 23, 1870 (16 Stat. L., 166), authorizing the
accounting officers of the Treasury, in settling the accounts of disbursing officers of
the War and Navy Departments during the rebellion, to allow, under certain circum-
stances, such credits for overpayments, loss of funds, vouchers, and property, as they
may deem just and reasonable, have no application to the case of a disbursing officer
who failed to account for money received, and who never presented any claim for a
credit for overpayment, or loss of funds, vouchers, or property. U. S. v. Wade, 75
Fed. Kep,. 261,
MILITARY LAWS OF THE U KITED STATES. 85
218. In all cases where it has become necessary for any h Evidence of
officer or enlisted man of the Army to file his evidence of charge to be re-
. J turned to officers
honorable discharge from the military service of the United J^d enlisted
States, to secure the settlement of his accounts, the account- N^a£24'V87i6Res'
ing officer with whom it has been filed shall, upon applica- 37|ec 2g2 R' g
tion by said officer or enlisted man, deliver to him such
evidence of honorable discharge; but his accounts shall
first be duly settled, and the fact, date, and amount of
such settlement shall be clearly written across the face of
such evidence of honorable discharge, and attested by the
signature of the accounting officer before it is delivered.
CLAIMS.
219. All claims and demands whatever by the Unitedb/^ttlce1|iFst^
States or against them, and all accounts whatever in which the^reaSiry °f
the United States are concerned, either as debtors or cred- Sec* 286> B* s*
itors, shall be settled and adjusted in the Department of
the Treasury.1
220. The Secretary of the Treasury shall, at the com- Cla?m8paiiowedf
rnencementof each session of Congress, report the amount 2 ^Jg7^1^1 s>
due each claimant whose claim has .been allowed in whole
or in part to the Speaker of the House of Representatives
and the presiding officer of the Senate, who shall lay the
same before their respective Houses for consideration.
Sec. 2, act of July 7, 1884. (®3 Stat. Z.,
1 Sections 300 A and 300 B of the Revised Statutes authorized certain claims of
loyal citizens, for property furnished to the armies of the United States during the
war of the rebellion to be prosecuted before the Quartermaster-General and the
Commissary-General of Subsistence. By section 2 of the act of June 16, 1874 (18
Stat. L., 75), this jurisdiction was extended, but was finally withdrawn by the opera-
tion of the acts of March 3, 1883 (chapters 93 and 116; 22 Stat. L., 457 and 485).
The act of March 3, 1849 (9 Stat, L., 414; sees. 3482-3487, R. S.), provided for the
reimbursement of officers and men for horses and other private property lost in the
military service. Several limitations upon the filing of claims under this act have
been enacted by Congress; but the general limitation will be found in section 2 of
the act of January 9, 1883 (22 Stat. L., 401), which contains the requirement that
"all claims arising under the act approved March 3, 1849, and all acts amendatory
thereof, which shall not be filed in the proper department within one year after the
passage of this act shall be forever barred and shall not be received, considered, or
audited by any department of the Government." Section 2 of the act of August 13,
1888 (25 Stat. L., 437) , suspended the limitation as to the presentation of claims for
losses of horses during the war of the rebellion for three years. The act of March 3,
1849, therefore became inoperative in respect to general claims on August 13, 1889,
and as to claims for horses, etc., lost during the rebellion, on August 13, 1891.
In the performance of the duty imposed by this statute the Secretary of the
Treasury is not subject to the control of the courts of the United States, and the duty
not being ministerial in character a writ of mandamus will not lie to compel the allow-
ance of a claim presented under the statute. Kendall v. Stockton, 12 Pet., 524;
Decatur v. Paulding, 14 Pet., 497, 515; U. S. v. Guthrie, 17 How., 284, 304; Brashear
v. Mason, 6 How., 92, 102. Such action on the part of the courts would also be m
the nature of entertaining a suit against the United States, which is not within their
jurisdiction. U. S. v. Guthrie, 17 How., 284, 305.
Where a claim within the scope of his official authority was submitted to the Sec-
retary of the Treasury, and by him decided adversely, it is incompetent for his ofiicial
successor to set the same aside or reopen it unless there has been a mistake in a matter
86 MILITARY LAWS OF THE UNITED STATES.
CLAIMS OF OFFICERS AND ENLISTED MEN FOR PROPERTY LOST AND
DESTROYED.
Accounting 221. The proper accounting officers of the Treasury are
officers to settle, r . r , _ ,. & , . .• J .
claims of officers hereby authorized and directed to examine into, ascertain,
and men in mili- s , . ••_ i /. , i
tary service for and determine me value or me private property belonging
destroyed.0 * to officers and enlisted men in the military service of the
United States which has been, or may hereafter be, lost
or destroyed in the military service, under the following
circumstances:
dSction^wS First- When such loss or destruction was without fault
neg?§enceult °r°r neg%ence on the part of the claimant.1
by^derSonpur?- Second. Where the private property so lost or destroyed
seaworthy ves-was shipped on board an unsea worthy vessel by order of
any officer authorized to give such order or direct such
shipment.2
of fact or materiax testimony discovered and produced. VOpin. Att. Gen., 664. A
head of a department of the Government has no right to review the acts of his pred-
ecessors, except to correct an error of calculation. He can not recall a credit given
or allowance made. Such action is for the judiciary. U. S. v. Bank of Metropolis,
15 Pet., 377.
The accounting officers of the Treasury have no jurisdiction to settle claims for
unliquidated damages arising from the torts of the agents of the Government. II
Compt. Dec., 174, 487; McKee v. U. S., 12 Ct. Cls., 556; Dennis v. U. S., 20 ibid, II;
XIV Opin. Att. Gen., 24. Nor have the accounting officers such jurisdiction over a
claim for unliquidated damages not arising from the tortious act of an officer of the
Government. II Compt. Dec., 487; I ibid, 261; II ibid, 174.
1 Clause first stands alone as an independent basis for a claim, and was intended *o
reach cases not covered by the other two clauses. This clause is broader in its scope
than the two succeeding clauses, but absence of fault or negligence must be proven
if the claim is made under it. Broad as this clause is, it does not cover every case of
loss an officer or soldier might sustain in his " reasonable, useful, and necessary"
property while he was in the military service. II Compt. Dec. , 644, 647.
Stating the proposition in other words, it does not make the United States the
absolute insurer, against all accidents and contingencies, of the reasonable, useful,
and necessary property of officers and soldiers. To entitle a person to reimbursement
under this clause the loss or destruction must be without fault or negligence, directly
or indirectly, near or remote, of the owner, and must have been caused by, or resulted
from, some exigency or necessity of the military service. It must reasonably be
attributable to the fact that it was held in the military service, whereby the owner
was deprived, in some degree, of the control over it which he would have in civil
life, and where it would be subjected to dangers not ordinarily incident to its use in
civil life. Under all conditions of a use of such personal property as is covered by
the law it is subject to deterioration and loss; but in the military service the dangers
are greater and peculiar because of the environments of that service. It was to pro-
vide against personal loss resulting from these special and peculiar dangers that this
law was enacted. Any other view of the law would make the United States the
insurer of all personal property necessarily used in its service by officers and soldiers.
This can not have been the intent of Congress. If it be held that absence of fault
or negligence is the only condition precedent to reimbursement an officer would be
entitled to payment for a horse dying from old age, or a uniform, side arms, or
household furniture worn out in use. Ill Compt. Dec., 637.
2 The true construction of clause second is that the claimant is entitled to reim-
bursement without being required to show, affirmatively, that he was not guilty of
negligence, "where the private property was shipped on board an unseaworthy
vessel by order of any officer authorized to give such order or direct such shipment."
The leading idea in this clause is that the loss would be attributable to the unsea-
worthiness of the vessel, and that the soldier sustaining the loss would have no
MILITARY LAWS OF THE UNITED STATES. 87
Third. Where it appears that the loss or destruction of when lost in
,1 j, ,, , . . saving property
the private property of the claimant was in consequence of CtoneS states.
of his having given his attention to the saving of the prop-
erty belonging to the United States which was in danger
at the same time and under similar circumstances. And
the amount of such loss so ascertained and determined
shall be paid out of any money in the Treasury not other-
wise appropriated, and shall be in full for all such loss or
damage: Provided, That any claim which shall be pre- Mar. 3, isas, v.
sented and acted on under authority of this act shall be 23> P< m'
held as finally determined, and shall never thereafter be
reopened or considered : And provided further, That this
act shall not apply to losses sustained in time of war or
hostilities with Indians: And provided further, That the
liability of the Government under this act shall be limited
to such articles of personal property as the Secretary of
War, in his discretion, shall decide to be reasonable, use-
ful, necessary, and proper for such officer or soldier while
option as to the shipment on said vessel and no responsibility for a loss under such
circumstances. II Compt. Dec., 647.
To entitle a person to recover under the first clause of the act the following facts,
among others, must be established:
for him
alone, as it were, personal to him in the performance of his duty."
2. The property must be such as the Secretary of War shall decide to be reason-
able, to be useful, and to be necessary for such officer or soldier while in quarters,
engaged in the public service in the line of duty.
3. The loss must have been without fault or negligence, in any degree, of the
claimant.
4. The loss must have been caused by some exigency or necessity of the military
service, such as would naturally be attributable to and would flow from such service.
To establish a case under this act the property must have been lost or destroyed in
the military service; not merely while it was in use in that service, but because it
was in that service. Being in that service must have been the proximate cause of
the loss.
5. The loss must not have been caused by the natural wear and tear, or deteriora-
tion, of the articles in ordinary use in the service. Inherent defects in articles, on
account of which they are unable to stand the ordinary strain of the service, will
prevent recovery.
6. Payment must be limited to the commercial value of the articles at the time of
their loss, and not exceed the value of such articles as it was necessary for the officer
or soldier to have in the service. Unusually expensive articles can not be considered
necessary. The purchase price of an article is more likely to be a fair measure of its
value than the estimate placed upon it after the purchaser obtains possession of it.
The purchase price should not be exceeded without good cause shown.
7. Proof of absence of fault or negligence must state all the circumstances, and be
sufficiently elaborate to enable the accounting officers to reach their own conclusions.
Mere opinions or conclusions of witnesses, without full statement of facts upon which
they are based, are of little value.
8. Any want of proper care either in the claimant or his servant, or the incompe-
tency of the servant, will prevent recovery.
9. It is the duty of owners to care for their property; any voluntary relaxation of
that care by intrusting it to others, is negligence within the meaning of the law.
Although under clause second the claimant is not required to show affirmatively
that he was not guilty of fault or negligence, this will not be understood as preclud-
ing the Government from showing that he was so guilty, and, if so found, he will
not be entitled to recover.
88 MILITARY LAWS OF THE UNITED STATES.
in quarters, engaged in the public service, in the line of
claims to be duty : And provided further. That all claims now existing
presented in two ^ 2 f
years. shall be presented within two years and not alter trom the
passage of this act; and all such claims hereafter arising
be presented within two years from the occurrence of the
loss or destruction.1 Act of March 3, 1885 (23 Stat. L.,
350).
NO deductions 222. In the settlement of claims of officers, soldiers, sail-
for attorneys'
fees. ors, and marines, or their representatives, and all other
June 6, 1900, v. ' ' • - j- ,- *
si, p. 637. claims for pay and allowances within the ]urisdiction of
the Auditor for the War Department or the Auditor for
the Navy Department, presented and filed hereafter in
which it is the present practice to make deductions of
attorneys' fees from the amount found due, no deductions
of fees for attorneys or agents shall hereafter be made,
but the draft, check, or warrant for the full amount found
due shall be delivered to the payee in person or sent tc
his bona fide post-office address (residence or place of busi-
ness). Act of June 6, 1900 (31 Stat. L., 637).
REIMBURSEMENT OF STATES AND TERRITORIES FOR EXPENSES INCURRED
IN RAISING AND EQUIPPING VOLUNTEERS DURING THE WAR WITH
SPAIN.
Par.
223, 224. Reimbursement of States.
225. Rates of pay.
226. Transportation to State rendezvous.
227. Subsistence.
Par.
228. Expenses.
229. Transportation of troops.
230. Limitation.
Reimburse- 223. The Secretary of the Treasury is hereby, directed,
ment of States, f , .
etc., July g, 1898. out of any money in the Treasury not otherwise appro-
priated, to pay to the governor of any State or Ter-
ritory, or to his duly authorized agents, the reasonable
costs, charges, and expenses that have been incurred by
1 Under clause third the claimant must show that he was not guilty of fault or neg-
ligence other than of neglecting his own property in his efforts to save that of the
Government. Ill Compt. Dec., 636; see, also, II ibid., 644; III ibid., 636, 659; XIX
Opin. Att. Gen., 693; G. O. 35, A. G. O., 1896; G. O. 39, A. G. 0., 1897; Circular 1,
A. G. O., 1897.
Paragraph 807, Army Regulations of 1901, contains the following requirement:
' ' For private property of officers or enlisted men lost or destroyed in the military
service, without fault or negligence on the part of the claimant, ' where the private
property so lost or destroyed was shipped on board an unseaworthy vessel by order
of any officer authorized to give such order or direct such shipment,' or 'where it
appears that the loss or destruction of the private property of the claimant was in
consequence of his having given his attention to the saving of the property belong-
ing to the United States which was in danger at the same time arid under similar cir-
cumstances,' compensation may be made under the provisions of the act of Congress
approved March 3, 1885. Proceedings of a board of survey will, if possible, accom-
pany each application under this act, showing fully the circumstances attending the
loss * * * ."
MILITARY LAWS OF THE UNITED STATES. 89
him in aiding the United States to raise the Volunteer
Army in the existing war with Spain, by subsisting, cloth-
ing, supplying, equipping, paying, and transporting men
of his State or Territory who were afterwards accepted
into the Volunteer Army of the United States: Provided,
That the transportation paid for shall be only the trans-
portation of such men from the place of their enrollment
for service in the Volunteer Army of the United States
to the place of their acceptance into the same by the United
States mustering officer, and that the names of the men
transported shall appear on the muster rolls of the Volun-
teer Army of the United States: And provided further,
That such claims shall be settled upon proper vouchers to
be filed and passed upon by the proper accounting officers
of the Treasury : And provided further, That, in cases
where the money to pay said costs, charges, and expenses
has been, or may hereafter, be borrowed by the governors
or their respective States or Territories, and interest is
paid, or may hereafter be paid, on the same, by the gov-
ernors or their States or Territories, from the time it was
or may be so borrowed to the time of its refunduient by
the United States, or thereafter, such interest shall not be
refunded by the United States; nor shall any interest be
paid the governors or their States or Territories on the
amounts paid out by them, nor any other amount refunded
or paid than is in this act expressly mentioned.1 Act of
July 8, 1898 (30 Stat. Z., 730.)
224. That the act entitled "An act to reimburse the Thesame^ ^
governors of States and Territories for expenses incurred30. p-1356-
by them in aiding the United States to raise and organize
and supply and equip the Volunteer Army of the United
States in the existing war with Spain," approved July
eighth, eighteen hundred and ninety -eight, be so amended
that the Secretary of the Treasury shall be, and is hereby,
authorized to allow, in the settlement of the claims of the
governors of States and Territories for reimbursement
under the provisions of the said act, expenses incurred after
as well as before July eighth, eighteen hundred and ninety -
1 All claims for expenses incurred by any State or Territory in aiding the United
States to raise the Volunteer Army in the existing war with Spain by subsisting,
clothing, supplying, equipping, paying, and transporting men of such State or terri-
tory who were afterwards accepted into the Volunteer Army of the United States
should be forwarded to the Secretary of the Treasury for audit and settlement by
the accounting officers of the Treasury, in accordance with the terms of the above-
quoted act. G. O., 97, A. G. 0., 1898.
The act of March 3, 1899 (30 Stat. L., 1356), paragraph 230, post, contains i
requirement that claims under this statute must be presented on or before Jai
1, 1902, or be forever barred.
90 MILITARY LAWS OF THE UNITED STATES.
eight: Provided, That no reimbursement shall be made
for service of members of the National Guard, or organized
militia, or naval reserves of any State or Territor}^ who
were not accepted into the Volunteer Army of the United
States, and no reimbursement shall be allowed for pay-
ments made to any person in excess of the pay and allow-
ances authorized by the laws of the State or Territory
for the grade in which he was accepted into the Volunteer
Army of the United States. That the compensation
allowed by the laws of the States and Territories to officers
and men of the National Guard, or militia, or naval re-
serves of said States and Territories shall be allowed to
the States and Territories, or the governors of the States
and Territories, as pay for such officers and men of said
National Guard, or militia, or naval reserves as appeared
and remained at the place of muster, arid who were after-
wards received into the service of the United States for
the period between the -date of assembly at the rendezvous
and the date they were mustered into the United States
service. Act of March 3, 1899 (30 Stat. Z., 1356.}
fbaidesofpay' 225< In aH States and Territories where no laws exist
for the payment of the officers and men of the National
Guard, or militia, or naval reserves, there shall be allowed
to said States and Territories, or the governors of said
States and Territories, for the officers the same pay as
allowed officers in the Regular Army holding the same
rank, and for the men, one dollar per day, for such officers
and men as appeared and remained at the place of muster
and were afterwards received into the service of the United
States for the period between the date of assembly at the
rendezvous and the date they were mustered into the serv-
ice of the United States : Provided further, That for all
officers and men of the National Guard, or militia, or naval
reserves of the States and Territories, who appeared at
the rendezvous for muster, and were rejected by the med-
ical examiner or mustering officer, pay shall be allowed
for the same to the States and Territories or the governors
of States and Territories, at the several rates as fixed as
aforesaid from the date of assembly to the date of their
rejection: Provided further, That where States and Ter-
ritories have not paid amounts to the officers and men or
any part thereof the pay allowed them by this Act, the
same shall be paid by the States and Territories direct to
the officers and men, and no money allowed by this Act
for officers and men shall be covered into the treasury of
the State or Territory. Ibid.
MILITARY LAWS OF THE UNITED STATES. 91
226. Under the appropriation made by said Act the Sec- Transportation
retary of the Treasury is hereby authorized to reimburse vous!ate
the governor of any State or Territory for reasonable
expenses incurred by him for the actual transportation of
the members of organized militia, or National Guard, or
naval reserves of his State from the place of company,
battalion, or regimental rendezvous to the State rendez-
vous, or place designated for examination and acceptance
of the members of such organization into the Volunteer
Army of the United States, and the actual transportation
from such State rendezvous, or such place designated for
examination and acceptance, to their respective company,
battalion, or regimental rendezvous of such men as were
rejected by the medical examiner or mustering officer:
Provided, That no reimbursement shall be made for the
transportation of any man who did not present himself for
enrollment in the Volunteer Army of the United States as
provided by law: And provided further, That the pro-
visions of this section shall apply also to payments made
by the governor of any State or Territory for the actual
transportation of individual volunteers who presented
themselves for enrollment in the Volunteer Army of the
United States and who were rejected by the medical exam-
iner or mustering officer. Sec. 2, ibid.
227. Nothing in said Act of July eighth, eighteen hun-
dred and ninety-eight, shall be so construed as to prohibit
the reimbursement of the governor of any State or Terri-
tory for reasonable expenses incurred for the subsistence
of the members of any organization of the organized militia
or National Guard, or naval reserves of his State or Ter-
ritory after having been called out by the governor on or
after April twenty-fifth, eighteen hundred and ninety-
eight: Provided, That such organizations shall afterwards
have been accepted into the Volunteer Army of the United
States. Sec. 3, ibid.
228. The expenses incurred by the governors of States
in carrying out the provisions of this Act shall be paid to sec. 4, mu.
them, notwithstanding any unsettled accounts, claims, or
indebtedness of the United States against their States, and
without prejudice to such unsettled accounts: Provided,
That when such unsettled account is caused by a default
in payment of principal or interest on any bonds or stock
issued or guaranteed by any State, the ownership of which
is vested in the United States, the Secretary of the Treas-
ury be, and he is hereby, authorized and directed to insti-
tute any act or proceeding which he may consider advisable
92 MILITARY LAWS OF THE UNITED STATES.
against such State or its representatives to secure the pay-
ment of the principal and interest of said bonds or stocks:
And provided further, That where the governor of any
State or Territory, or any officer of the Array detailed as
mustering officer of volunteers, or any commander of a
company or companies, or troop or troops, or batterj7 or
battalion, or regiment, or brigade, has purchased or author-
ized the purchase of supplies or equipments, or incurred
any necessary expense for the comfort of the men in camp
or rendezvous, and said supplies were used and equipments
were subsequently taken into the United States service by
said volunteers, and no receipts given to such military offi-
cer, the certificate to that effect of the governor of the State
or Territory to which the volunteers belonged, shall be
held sufficient to authorize the settlement and payment of
such account on investigation, if the Treasury Department
shall be satisfied of the fact of such purchase of such equip-
ment and supplies, or that such necessary expenses were
incurred and such use of such supplies, or such taking of
such equipments into the United States service, and the
voucher or vouchers of said officers be produced by said
governor. Sec. 4i
Transporta- 229. That the Secretary of the Treasury be, and is herebv,
tiou of troops. ,1.1, <. • " ,i m
sec. 5, ibid, authorized to pay, out or any money in tne 1 reasury not
otherwise appropriated, the just and proper account or
claim of any railroad, transportation company, or person
for transportation of men or troops from place of en-
rollment to point of rendezvous, furnished at the request
of the Quartermaster-General of the Army or his agents,
or at the request of any United States mustering officer or
other officer authorized by the Secretary of War to enroll,
muster, or mobilize volunteers for the war with Spain;
and also to pay such just and proper accounts as may be
presented for transportation back from point of rendez-
vous to place of enrollment of men who volunteered and
were rejected by the medical examiner or mustering officer:
Provided, That the amount allowed and paid for such trans-
portation shall not be in excess of the rates charged for
transporting troops of the United States under like cir-
cumstances.
All claims under the provision of this Act must be filed
in the office of the Auditor for the War Department, and
must be supported by proper vouchers or other conclusive
evidence of interest. Sec. 5, ibid.
Limitation on 230. All claims for reimbursement under this Act or the
sec. IB, ma. Act of July eighth, eighteen hundred and ninety -eight,
MILITARY LAWS OF THE UNITED STATES. 93
shall be presented in itemized form to the Treasury De-
partment on or before January first, nineteen hundred and
two, or be forever barred. l Sec. 6, ibid.
COMPROMISE OF CLAIMS AND PURCHASE ON EXECUTION.
231. Upon a report by a district attorney, or any special compromise of
attorney or agent having charge of any claim in favor of Cl5£r!'3, ises, c.
the United States, showing in detail the condition of such 74o.s' 10' v' 12' p'
claim, and the terms upon which the same may be com- e Biatch.Gmge'
promised, and recommending that it be compromised upon
the terms so offered, and upon the recommendation of the
Solicitor of the Treasury, the Secretary of the Treasury
is authorized to compromise such claim accordingly. But
the provisions of this section shall not apply to any claim
arising under the postal laws.2
232. At every sale, on execution, at the suit of the Purchase on
United States, of lands or tenements of a debtor, the e*May 26?is24, c.
United States may, by such agent as the Solicitor of the sec.347o',R.s.'
Treasury shall appoint, become the purchaser thereof; but
in no case shall the agent bid in behalf of the United States
a greater amount than that of the judgment for which
such estate may be exposed to sale, and the costs. When-
ever such purchase is made, the marshal of the district in
which the sale is held shall make all needful conveyances,
assignments, or transfers to the United States.
SET-OFF.
233. When any final judgment recovered against the Amountofdebt
TT -A. ^ cij. » - -11 TII ; due United
United btates or other claim duly allowed by legal author- states to be witn-
ity, shall be presented to th'e Secretary of the Treasury for tary of Treasury
payment, and the plaintiff or claimant therein shall bements, etc., of
j i j i . . , TT • -in debtor against
indebted to the United States in any manner, whether as united states.
principal or surety, it shall be the duty of the Secretary toi8?5, v. is, p. 431!
withhold payment of an amount of such judgment or claim
equal to the debt thus due to the United States; and if
such plaintiff or claimant assents to such set-off, and dis-
charges his judgment or an amount thereof equal to said
debt or claim, the Secretary shall execute a discharge of
1 For statute conferring authority upon the Secretary of War to investigate claims
for loss of, or injury to, property during the war with Spain, see the Act of June 6,
1900 (31 Stat. L., 632), par, 137, ante.
2 Compromise of claims. — Claims against the United States which are disputed by
the officers authorized to adjust such accounts may be compromised, and if the
claimant voluntarily enters into such a compromise and accepts a smaller sum than
the claim and executes a discharge in full for the whole claim, he is bound by the
adjustment and can not sue for what he lian voluntarily relinquished. Sweeny v.
U. S.', 17 Wall., 75, 77; Mason v. U. S., ibid, 67.
94 MILITARY LAWS OF THE UNITED STATES.
the debt due from the plaintiff to the United States. But
if such plaintiff, or claimant, denies his indebtedness to the
United States, or refuses to consent to the set-off, then the
Secretary shall withhold payment of such further amount
of such judgment, or claim, as in his opinion will be suffi-
cient to cover all legal charges and costs in prosecuting
the debt of the United States to final judgment. And if
such debt is not already in suit, it shall be the duty of the
Secretary to cause legal proceedings to be immediately
commenced to enforce the same, and to cause the same to
be prosecuted to final judgment with all reasonable dis-
patch. And if in such action judgment shall be rendered
against the United States, or the amount recovered for
debt and costs shall be less than the amounts so withheld
as before provided, the balance shall then be paid over to
interest. such plaintiff by such Secretary, with six per cent interest
thereon for the time it has been withheld from the plaintiff.1
Act of March 3, 1875 (18 Stat. L., 481).
ASSIGNMENTS OF CLAIMS, POWERS OF ATTORNEY.
234. All transfers and assignments made of any claim
UIFeb.'2e6tci853 c uPon the United States, or of any part or share thereof,
iTO^JuiyjJo1?^' O1 mterest therein, whether absolute or conditional, and
cs6e6c.V84977P,' ill's. whatever may be the consideration therefor, and all powers
of attorney, orders, or other authorities for receiving pay-
ment of any such claim, or of any part or share thereof,
shall be absolutely null and void, unless they are freely
made and executed in the presence of at least two attest-
ing witnesses, after the allowance of such a claim, the
ascertainment of the amount due, and the issuing of a
warrant for the payment thereof. Such transfers, assign-
1 Set-off. — When a person is both debtor and creditor of the United States, in any
form, the officers of the Treasury Department in settling the accounts not only have
the power, but are required, in the proper discharge of their duties, to set off the one
indebtedness against the other, and to allow and certify for payment only the bal-
ance found due on one side or the other. * * * The right of set-off in such cases
exists independently of these enactments (sec. 1766, Rev. Stat.. and the act of March
3, 1875; 1 Sup. to Rev. Stat., 185), and is founded upon what is now section 236 of the
Revised Statutes. Taggart v. U. S., 17 Ct. Cls., 322, 327; McKnight's Case, 13 ibid.,
292; Bonnafon's Case, 14 ibid., 489; Howes v. U. S., 24 ibid., 170; Reeside r. Walker,
11 How., 272, 290. The power in the matter of set-offs conferred upon the Secretary
of the Treasury by the act of March 3, 1875 (18 Stat. L., 481), is exclusive, and can
not be exercised by the courts. U. S. v. Griswold, 30 Fed. Rep., 604.
Settled accounts in the Treasury Department, where the United States have acted
on the settlement and paid the balance therein found due, can not be opened or set
aside years afterwards merely because some of the prescribed steps in the accounting
which it was the duty of a head of a Department to see had been taken had in fact
been omitted, or on account of technical irregularities when the remedy of the party
against the United States is barred by the statute of limitation and the remedies of
the United States are intact, owing to its not being subject to an act of limitation.
U. S. v. Johnston, 124 U. S., 236, 1 Compt. Dec., 192.
MILITARY LAWS OF THE UNITED STATES. 95
ments, and powers of attorney, must recite the warrant
for payment, and must be acknowledged by the person
making1 them, before an officer having authority to take
acknowledgments of deeds, and shall be certified by the
officer; and it must appear by the certificate that the
officer, at the time of the acknowledgment, read and fully
explained the transfer, assignment, or warrant of attorney
to the person acknowledging the same. 1
1 The mischiefs which this statute were intended to prevent were mainly two: (1)
The danger that the rights of the Government might be embarrassed by having to
deal with several persons instead of one, and by the introduction of a party who was
a stranger to the original transaction; (2) that, by a transfer of such claim against
the Government to one or more persons not originally interested in it, the way might
be conveniently opened to such improper influences in prosecuting the claim before
the Departments, the courts, or the Congress as desperate cases, when the reward is
contingent on success, so often suggest. In Spofford v. Kirk (97 U. S., 490) the
Supreme Court had said that the greater of the two evils was the possible combina-
tion of interests and influences in the prosecution of claims which might have no
real foundation. Goodman v. Niblack, 102 U. S., 560; Bailey v. U. S., 109 U. S., 438;
Milliken v. Barrow, 65 Fed. Rep., 888, 892.
The provisions of section 3477 of the Revised Statutes, prohibiting and making
void transfers of any claim against the United States before the allowance of such
claim, apply only to claims existing at the time of the transfer, in the form of a right
to demand money from the United States, and not to cases where, at the very incep-
tion of the transaction out of which a claim against the United States may arise, one
party assigns to another the contingent profits he hopes to make, but which do not
then exist, and can only be secured by the loan of the assignee's money to the assignor.
Milliken v. Barrow, 65 Fed. Rep., 888.
The word "claim" as used in section 3477, Revised Statutes, which provides that
"all transfers and assignments made of any claim upon the United States *
shall be absolutely null and void" unless made as prescribed therein, comprehends
all demands against the United States for the payment of money whether liquidated
or unliquidated; and an assignment of a judgment against the United States, made
before the issuing of a warrant for the payment thereof, is within the meaning of the
statute and void. IV Cpmpt. Dec., 196; I ibid. , 276. The provisions of section 3477,
Revised Statutes, touching transfers and assignments of claims against the United
States, and powers of attorney, etc., for receiving payment thereof, do not apply to
undisputed claims or any claim about which no question is made as to its validity or
extent. XVII Opin. Att. Gen., 545; XXI ibid., 75; XX ibid., 578.
The provision of the Revised Statutes (section 3477), making void transfers and
assignments of claims against the United States, relates to voluntary assignments, and
does not extend to transfers by operation of law, or interfere with the equitable doc-
trine of subrogation. Amer. Tob. Co. v. U. S., 32 Ct. Cls., 207; II Comp. Dec., 49.
While section 3477 of the Revised Statutes declares null and void all powers of attor-
ney given prior to the settlement of a claim and the issuing of a warrant in payment,
" powers of attor-
making them,
the courts the
accounting officers are required, notwithstanding the provisions of section 3477 of
the Revised Statutes, to credit disbursing officers with payments actually made by
them under powers of attorney, provided it is shown that, at the time of such pay-
ment, such powers are undisputed and have not been revoked, either by the volun-
tary action of the principal or by his death. Ibid., 142. Payments may be made
to a corporation under a contract entered into by an attorney duly authorized to act
for the corporation in the making of such contract. II Compt. Dec., 30; ibid., 295.
See also decision of Secretary of War of November 7, 1895, in Circular 13, A. G. O.,
1895.
The assignment of a quartermaster's voucher, unless made "after the allowance of
such a claim" and in conformity with all the other requirements of section 3477 of
the Revised Statutes, is "absolutely null and void." The exigencies of the war and
of the Government service immediately after the war, which atone time were relied
upon to support the practice of paying the assignees of such vouchers, can not be
made available in deciding cases now arising. 3 Dig. 2nd Compt. Dec., par. 156.
96
MILITARY LAWS OF THE UNITED STATES.
PROSECUTION OF CLAIMS.
Par.
235. Oath of claimant or attorney.
236. Administration of oath.
237. Claims of disloyal persons.
238. Limitation on prosecution.
239. Penalty for false claims.
Par.
240. Suits for recovery of penalty.
241. Duty of district attorney.
242. Rights of person bringing suit.
243. Limitation of suits.
244. Rules respecting attorneys.
Oath by per- 235. Any person prosecuting claims, either as attorney
sons prosecuting *..... , » £ ^ r\
claims. or on his own account, before any or the Departments or
205, s. i, v. 12, V bureaus of the United States, shall be required to take the
Sec. 8478, R. s. oath of allegiance, and to support the Constitution of the
United States, as required of persons in the civil service.1
(See sees. 1756, 1757, E. 8.)
who may ad- 236. The oath provided for in the preceding- section may
minister the, . IT"
oath. be taken before any justice of the peace, notary public, or
205, s. 2, V. 12,' p! other person who is legally authorized to administer an oath
sec. 3479, B. s. in the State or district where the same may be administered.
claims of dis- .237. It shall be unlawful for any officer to pay any account,
Mar. 2, 1867, claim, or demand against the United States which accrued
Res 46 v 14 p
57i.' ' or existed prior to the thirteenth day of April, eighteen
Sec. 3480, R.S. J fe
hundred and sixty-one, in favor of any person who pro-
moted, encouraged, or in any manner sustained the late
rebellion, or in favor of any person who during such re-
bellion was not known to be opposed thereto, and distinctly
in favor of its suppression; and no pardon heretofore
granted, or hereafter to be granted, shall authorize the
payment of such account, claim, or demand, until this sec-
tion is modified or repealed. But this section shall not be
construed to prohibit the payment of claims founded upon
contracts made by any of the Departments, where such
claims were assigned or contracted to be assigned prior to
the first day of April, eighteen hundred and sixty -one, to
the creditors of such contractors, loyal citizens of loyal
States, in payment of debts incurred prior to the first day
of March, eighteen hundred and sixty-one.2
claims for coi- 238. No claims against the United States, for collecting,
lecting etc. vol-
unteers to be pre- drilling, or organizing volunteers for the war of the rebel-
sented prior to,. ,'
June so, 1874. lion, shall be audited or paid unless presented before the
1 A retired officer of the Army can not act as an attorney for claimants in suits
brought against the United States in the Court of Claims. Tyler v. U. S., 18 Ct. Cls.,
25; In re Winthrop 31, ibid. 35; but see People v. Duane, 121 N. Y. Rep., 373.
2 By the act of March 3, 1877, chapter 105, volume 19, page 362, provision was made
for the payment of the amounts due to mail contractors for mail service performed
in the States recently in rebellion, and before said States respectively engaged in
war against the United States; and the provisions of this section of the Revised
Statutes were declared to be not applicable to the payments therein authorized.
MILITARY LAWS OF THE UNITED STATES. 9f
thirtieth day of June, eighteen hundred and seventy-four. Mar. 3, 1373, <-.
No claims for horses lost prior to the first day of January, loo! 8' lf v'
eighteen hundred and seventy-two, shall be audited or paid '**' 3489' R'S*
unless presented before the thirtieth day of June, eighteen
hundred and seventy-four.
239. Any person not in the military or naval forces of Penalty for
the United States, or in the militia called into or actually?! a im^agafm*
employed in the service of the United States, who shall do Mar. 2, im, c.
or commit any of the acts prohibited by any of the pro- 698. *'
visions of section fifty-four hundred and thirty-eight,
Title "CRIMES," shall forfeit and pay to the United States
the sum of two thousand dollars, and, in addition, double
the amount of damages which the United States may have
sustained by reason of the doing or committing such act,
together with the costs of suit; and such forfeiture and
damages shall be sued for in the same suit.
240. The several district courts of the United States, the suits for recov-
supreme court of the District of Columbia, the several dis- Mar. 2, ises, c.
trict courts of the Territories of the United States, within ess.8'
. • • i • • i i • • i Sec. , **H «, K. S.
whose junsdictional limits the person doing or committing
such act shall be found, shall, wheresoever such act may
have been done or committed, have full power and juris-
diction to hear, try, and determine such suit. Such suit
may be brought and carried on by any person, as well for
himself as for the United States; the same shall be at the
sole cost and charge of such person, and shall be in the
name of the United States, but shall not be withdrawn or
discontinued without the consent, in writing, of the judge
of the court and the district attorney, first filed in the case,
setting forth their reasons for such consent.
241. It shall be the dutv of the several district attorneys Duty or dis-
. . . trict attorney as
or the United States for the respective districts, for the to such eases.
M&r 2 18G3 c
District of Columbia, and for the several Territories, to bee?, s. 5, V. 12,' p!
diligent in inquiring into any violation of the provisions Sec.3492,B.s.
of section thirty-four hundred and ninety bj^ persons liable
to such suit, and found within their respective districts or
Territories, and to cause them to be proceeded against in
due form of law for the recovery of such forfeiture and
damages. And such person may be arrested and held to
bail in such sum as the district judge may order, not exceed-
ing the sum of two thousand dollars, and twice the amount
of the damages sworn to in the affidavit of the person
bringing the suit.
242. The person bringing said suit and prosecuting it ^° ^J
final judgment shall be entitled to receive one-half the such suits.
22924—08 7
98 MILITAEY LAWS OF THE UNITED STATES.
Mar. 2, 1863, c. amount of such forfeiture, as well as one-half the amount
698. " ' s °f ^ne damages he shall recover and collect; and the other
half thereof shall belong to and be paid over to the United
States; and such person shall be entitled to receive to his
own use all costs the court may award against the defend-
ant, to be allowed and taxed according to any provision of
law or rule of court in force, or that shall be in force in
suits between private parties in said court: Provided, That
such person shall be liable for all costs incurred by himself
in the case, and shall have no claim therefor on the United
States.
^Limitation of 243. Every such suit shall be commenced within six years
gee. j >ibid from the commission of the act, and not afterward.
i^GC. »>-§•" t, K. N.
Rules respect 244. The Secretary of the Treasury may prescribe rules
ing attorneys, *.••.«• • -i •.• p
etc.. to be pre- and regulations governing the recognition of agents, attor-
scribed by the ,. & , . * , .' , .
secretary of the neys, or other persons representing claimants before his
July 7/1884, v. Department, and may require of such persons, agents and
attorneys, before being recognized as representatives of
claimants, that they shall show that they are of good char-
acter and in good repute, possessed of the necessary qual-
ifications to enable them to render such claimants valuable
service, and otherwise competent to advise and assist such
claimants in the presentation of their cases. And such
Secretary may after due notice and opportunity for hear-
ing suspend, and disbar from further practice before his
Department any such person, agent, or attorney shown to
be incompetent, disreputable, or who refuses to comply
with the said rules and regulations, or who shall with
intent to defraud, in any manner willfully and knowingly
deceive, mislead, or threaten any claimant or prospective
claimant, by work, circular, letter, or by advertisement.
Act of July 7, 1884 ($3 Stat. Z.,
DEBTS DUE BY OR TO THE UNITED STATES.
Par. Par.
245. Priority of debts due the United
States established.
246. Liability of executors, etc.
247. Priority of sureties.
priority of 245. Whenever anv person indebted to the United States
debts due the ..
united states is insolvent, or whenever the estate of anv deceased debtor,
established. .111.1
Mar. 3, 1797, c. in the hands ot the executors or administrators, is insuffi-
Mar.2j799,c.22,'cient to pay all the debts due from the deceased, the debts
sec. 3466, K. s. due to the United States shall be first satisfied; and the
priority hereby established shall extend as well to cases in
which a debtor, not having sufficient property to pay all
his debts, makes a voluntary assignment thereof, or in
MILITARY LAWS OF THE UNITED STATES. 99
which the estate and effects of an absconding, concealed,
or absent debtor are attached by process of law, as to cases
in which an act of bankruptcy is committed.1
246. Every executor, administrator, or assignee, or other Liability of ex-
i j i j_ j i xi ecutors, etc.
person, who pays any debt due by the person or estate from Mar. 2, 1799, c.
whom or for which he acts, before he satisfies and pays the 6?6.8' '
debts due to the United States from such person or estate, Pet., 182- Brent
, „ , i i • i • i /. f- Bank of Wash-
shall become answerable in his own person and estate torington, 10 Pet.,
the debts so due to the United States, or for so much seV. 3407, R.S.
thereof as may remain due and unpaid. (See sec. 5101, R. S. )
247. Whenever the principal in any bond given to the Priority of
United States is insolvent, or whenever, such principal 22Mar- 2, ijw, c.
being deceased, his estate and effects which come to the676.s'
, , . , . . , . . Sec. 3468, R. S.
hands of his executor, administrator, or assignee, are in-
sufficient for the payment of his debts, and, in either of
such cases, any surety on the bond, or the executor, ad-
ministrator, or assignee of such suret}7 pays to the United
States the money due upon such bond, such surety, his
executor, administrator, or assignee, shall have the like
priority for the recovery and receipt of the moneys out of
the estate and effects of such insolvent or deceased prin-
cipal as is secured to the United States; and may bring
and maintain a suit upon the bond, in law or equity, in his
own name, for the recovery of all moneys paid thereon.2
Par.
DISCHARGE OF POOR DEBTORS.
Par.
248. Discharge by Secretary of Treasury. 249. Discharge by President.
248. Any person imprisoned upon execution issuing from Discharge of
J r poor debtor by
any court of the United States, for a debt due to the |^retary of the
United States, which he is unable to pay, may, at any time 4gJune6, 1798, c.
after commitment, make application in writing, to the Sec- PP. 5*61^2- B g'
retary of the Treasury, stating the circumstances of his
case, and his inability to discharge the debt; and there-
upon the Secretary may make, or require to be made, an
examination and inquiry into the circumstances of the
1 U. S. v. Fisher, 2 Cr., 358; U. S. v. Hooe, 3 Cr., 73; Harrison v. Slerry, 5Cr., 289;
Prince v. Bartlett, 8 Cr., 431; U. S. r. Bryan, 9 Cr., 374; Thelusson v. Smith, 2 Wh.,
396; U. S. v. Rowland, 4 Wh., 108; Conard v. Insurance Company, 1 Pet., 386; Hun-
ter v. U. S., 5 Pet, 173; U. S. v. State Bank, 6 Pet, 29; U. S. v. Hack, 8 Pet, 271;
Brent i-. Bank of Washington, 10 Pet, 596; Beaston r. Farmers' Bank, 12 Pet., 102;
U. S. v. Herron, 20 Wall., 251; Bayne etal., Trustees, v. U. S., 93 U. S., 642.
2 The priority given in this section to sureties does not apply to sureties on a recog-
nizance in a criminal case. U. S. v. Rydor, 110 U. S., 729; U. S. r. Fisher, 2Cr., 358;
U. S. r. Hooe, 3 Cr., 73; Prince r. Bartlett, 8 Cr., 431; U. S. v. Bryan, 9 Cr., 374;
Thelusson r. Smith, 2 Wh., 396; U. S. r. Rowland, 4 Wh., 108; Conard r. Insurance
Company, 1 Pet., 439; Hunter r. U. S., 5 Pet , 173; Child v. Shoemaker, 1 Wash.,
494; U. S. v. King, Wall. C. C., 12; Johns v. Brodhag, 1 Cr. C. C., 235.
100 MILITARY LAWS OF THE UNITED STATES.
debtor, by the oath of the debtor, which the Secretary, or
any other person by him specially appointed, is authorized
to administer, or otherwise, as the Secretary shall deem
necessary and expedient, to ascertain the truth; and upon
proof made to his satisfaction, that the debtor is unable
to pay the debt for which he is imprisoned, and that he has
not concealed or made any conveyance of his estate, in
trust, for himself, or with an intent to defraud the United
States, or to deprive them of their legal priority, the Sec-
retary is authorized to receive from such debtor any deed,
assignment, or conveyance of his real or personal estate,
or any collateral security, to the use of the United States.
Upon a compliance by the debtor with such terms and con-
ditions as the Secretary m&y judge reasonable and proper,
the Secretary must issue his order, under his hand, to the
keeper of the prison, directing him to discharge the debtor
from his imprisonment under such execution. The debtor
shall not be liable to be imprisoned again for the debt;
but the judgment shall remain in force, and may be satis-
fied out of any estate which may then, or at any time after-
ward, belong to the debtor. The benefit of this section
shall not be extended to any person imprisoned for any
fine, forfeiture, or penalty, incurred by a breach of any
law of the United States, or for moneys had and received
by any officer, agent, or other person, for their use; nor
shall its provisions extend to any claim arising under the
postal laws.1
th?preSdgent by ^^' Whenever any person is imprisoned upon execution
18399C *or a ^e^ ^ue *° ^e United States, which he is unable to
sec. 3472, K. s. pay, and his case is such as does not authorize his dis-
charge by the Secretary of the Treasury, under the preced-
ing section, he may make application to the President,
who, upon proof made to his satisfaction that the debtor
is unable to pay the debt, and upon a compliance by the
debtor with such terms and conditions as the President
shall deem proper, may order the discharge of such debtor
from his imprisonment. The debtor shall not be liable to
be imprisoned again for the same debt; but the judgment
shall remain in force, and may be satisfied out of any
estate which may then, or at any time afterward, belong-
to the debtor.2
1 The discharge of a debtor in accordance with the provisions of this section doe*
not operate to discharge his sureties from liability. 1 Paine, 525. See also U. S. v.
Stansbury, 1 Pet., 573; U. S. v. Ringgold, 5 Pet, 150; Hunter?'. U. S., 5 Pet,, 173;
U. S. v. Sturges, 1 Paine, 525.
2 See U. S. v. Ringgold, 8 Pet., 150.
MILITARY LAWS OF THE UNITED STATES. 101
SUITS TO RECOVER BALANCES DUE THE UNITED STATES.
250. Whenever any person accountable for public money suits to recover
neglects or refuses to pay into the Treasury the sum or SSpent officers.
balance reported to be due to the United States upon the2o"s.i,Vi,P.5i2;
adjustment of his account, the [Auditors under the direc- sen,'
S<*
tion of the] Comptroller of the Treasury shall institute suit
for the recovery of the same, adding- to the sum stated to
be due on such account the commissions of the delinquent,
which shall be forfeited in every instance where suit is
commenced and judgment obtained thereon, and an inter-
est of six per centum from the time of receiving the money
until it shall be 'repaid into the Treasury.1 Section 4, act
of July 31, 1894 (28 Stat. Z., 806).
DISTRESS WARRANTS.
I'ar. Par.
251. Distress warrant. i 258. Disposal of surplus.
252. Contents of warrant.
253. Execution against officer.
254. Same against surety.
255. Levy to be a lien.
256. Sale of lands.
257. Conveyance of lands.
259. Penalty for failure to account.
260. Extent of application of warrant.
261. Postponement, when allowed.
262. Injunction to stay warrant.
263. Procedure on warrant.
264. Eights of United States reserved.
251. Whenever any collector of the revenue, receiver of ^Distress war-
public monev, or other officer, who has received the pub- May 15, 1820, c.
J 107, s. 2, v. 3, p.
lie money before it is paid into the Treasury of the United 592; May29,i83o,
J J . c. 153, s. 1, v. 4, p.
btates, tails to render his account or pay over the same in4i4; Feb. 27,1877,
^ J s. 19, p. 249; July
the manner or within the time required by law, it shall pest™, v. 28, p.
the duty of the proper Auditor to cause to be stated the sec. 8626, B. s.
account of such officer, exhibiting truly the amount due to
the United States, and to certify the same to the Solicitor
of the Treasury, who shall issue a warrant of distress
against the delinquent officer and his sureties directed to
the marshal of the district in which such officer and his
sureties reside. Where the officer and his sureties reside
in different districts, or where they or either of them reside
in a district other than that in which the estate of either
may be, which it is intended to take and sell, then such
warrant shall be directed to the marshals of such districts,
respectively.
252. The warrant of distress shall specify the amount J^ontents of
with which such delinquent is chargeable and the sums, if sec. 3626, B. s.
any, which have been paid.
'See also the titles " The Comptroller of the Treasury" and " The Auditors of tte
Treasury" in the chapter entitled THE TREASURY DEPARTMENT, paragraphs 134-1 b&,
supra. See also section 4, act of July 31, 1894 (28 Stat. L., 206), and U. 8. r, Verdier,
164 U. S., 213, 219.
102 MILITARY LAWS OF THE UNITED STATES.
Execution 253. The marshal authorized to execute anv warrant of
against officer. .
May is, 1820, c. distress shall, by himself or by his deputy, proceed to levy
593! "^ 'and collect the sum remaining due, by distress and sale of
* the goods and chattels of such delinquent officer, having
given ten days' previous notice of such intended sale, by
affixing an advertisement of the articles to be sold at two
or more public places in the town and count}7 where the
goods or chattels were taken, or in the town or county
where the owner of such goods or chattels may reside. If
the goods and chattels be not sufficient to satisfy the war-
rant, the same may be levied upon the person of such offi-
cer, who may be committed to prison, there to remain
until discharged by due course of law.
Execution 254. If the delinquent officer absconds, or if goods and
agMayi5Ui82o,c. chattels belonging to him can not be found sufficient to
ID?, s. 2, v. 3, p. saj. jsf ^ne warrant the marshal or his deputy shall proceed,
v - • ^Ift^tt UK
' notwithstanding the commitment of the delinquent officer,
to levy and collect the sum which remains due by such
delinquent, by the distress and sale of the goods and chat-
tels of his sureties; having given ten days' previous notice
of such intended sale, by affixing an advertisement of the
articles to be sold at two or more public places in the town
or county where the goods or chattels were taken, or in
the town or county where the owner resides.
neifvy to be H ^^' ^^e amount due ^7 any delinquent officer is de-
May 15, 1820, c. clared to be a lien upon the lands, tenements, and heredit-
107, s. 2, v. 3, p.
5»3. aments of such officer and his sureties, from the date of a
Sec. :><•'_:>. K. s. i • i
levy in pursuance of the warrant of distress issued against
him or them, and a record thereof made in the office of the
clerk of the district court of the proper district, until the
same is discharged according to law.
sale of lands. 256. For want of goods and chattels of a delinquent offi-
May 15, 1820, c. , . .
107, s. 2, v. 3, p. cer or his sureties, sufficient to satisfy any warrant ot
593
' sec. 3630, K. s. distress issued pursuant to the foregoing provisions, the
lands, tenements, and hereditaments of such officer and his
sureties, or so much thereof as may be recessary for that
purpose, after being advertised for at least three weeks in
not less than three public places in the county, or district
where such real estate is situate, before the time of sale,
shall be sold by the marshal of such district or his deputy.
conveyance <.f 257. For all lands, tenements, or hereditaments sold in
ibid. pursuance of the preceding section, the conveyance of the
KPI* *lft^l1 It K
marshal or his deputy, executed in due form of law, shall
give a valid title against all persons claiming under such
delinquent officer or his sureties.
MILITARY LAWS OF THE UNITED STATES. 103
258. All moneys which may remain of the proceeds of Disposal of sur-
sales, after satisfying the warrant of distress, and paying P /fed.
the reasonable costs and charges of the sale, shall be re-
turned to such delinquent officer or surety, as the case
may be.
259. Whenever any officer employed in the civil, military, Penal ty for faii-
, . *,!/>( j • i ?i , , . ure of disburs-
or naval service or tne (jrovernment, to disburse the public ins officer to ac-
money appropriated for those branches of the public serv- May' 15,1820, c.
V 1 £• M A 1 • 107' S' 3>V- 3' P-
ice, respectively, fails to render his accounts, or to pay over, 594-, May 29,1330,
in the manner and in the times required by law, or by the P* 414; July '31!
regulations of the Department to which he is accountable, 206.'
...,., ' Sec. 3638, B. S.
any sum or money remaining in ms hands, it shall be the
duty of the proper Auditor, as the case may be, who shall
be charged with the revision of the accounts of such officer,
to cause to be stated and certified the account of such
delinquent officer to the Solicitor of the Treasury, who is
hereby authorized and required immediately to proceed
against such delinquent officer, in the manner directed in
the six preceding sections.
260. All the provisions relating to the issuing of a war- Extent of ap-
- , . , . , , . m r/j? , , plication of dis-
rant of distress against a delinquent officer shall extend to tress warrants.
m <• , T ^ T • , i t i -• • i May is. 1820, c.
every officer or the Government charged with the disburse- 107, s. 3, v. 3, p.
merit of the public money, and to their sureties, in the same s'ec.
manner and to the same extent as if they were herein
described and enumerated.
261. With the approval of the Secretary of the Treasury, Postponement
the institution of proceedings by a warrant of distress may for nPonaccomi?
be postponed, for a reasonable time, in cases where, in his iowedW
, ,. . . .,, . . , May 15, 1820, c.
opinion, the public interest will sustain no injury by such 107, s. 3, v. 3, p.
postponement. s'ec. 36S5,R.s.
262. Any person who considers himself aggrieved bv any injunction to
/ V\ . r . stay distress
warrant of distress issued under the foregoing provisions warrant.
may prefer a bill of complaint to any district judge of the 107, ss.4,5,v.3|p!
United States, setting forth therein the nature and extent s'ec.3636,B.s.
of the injury of which he complains; and thereupon the
judge may grant an injunction to stay proceedings on such
warrant altogether, or for so much thereof as the nature of
the case requires. But no injunction shall issue till the
party applying for it gives bond, with sufficient security,
in a sum to be prescribed by the judge, for the performance
of such judgment as may be awarded against him; nor
shall the issuing of such injunction in any manner impair
the lien produced by the issuing of the warrant. And the
same proceedings shall be had on such injunction as in
other cases, except that no answer shall be necessary on
104
MILITARY LAWS OF THE UNITED STATES.
the part of the United States, and if, upon dissolving the
injunction, it appears to the satisfaction of the judge that
the application for the injunction was merely for delay, the
judge may add to the lawful interest assessed on all sums
found due against the complainant such damages as, with
such lawful interest, shall not exceed the rate of ten per
centum a year. Such injunction may be granted or dis-
solved by the district judge either in or out of court.
Proceedings on 263. When the district judge refuses to grant an iniunc-
distress warrant i
in circuit court, tion to stay proceedings on a distress warrant, as aforesaid,
May 15, 1820, c. . J * . . & .... ,
107, ss. 4, 6, v. 3, or dissolves such injunction alter it is granted, any person
1869, c. 22, s. 2, who considers himself aggrieved by the decision in the
sec. 3637,R. s. premises may lay before the circuit justice, or circuit judge
of -the circuit within which such district lies, a copy of the
proceeding had before the district judge; and thereupon
the circuit justice or circuit judge may grant an injunction,
or permit an appeal, as the case may be, if, in his opinion,
the equity of the case requires it. The same proceedings,
subject to the same conditions, shall be had upon such
injunction in the circuit court as are prescribed in the dis-
trict court.
Rights of 264. Nothing contained in the provisions of this title
United States re-
served, relating to distress warrants shall be construed to take
May 15,1820, c. " .
107, s. 9, v. 3, p. away or impair any right or remedy which the United States
sec. seas, B.S. might have, by law, for the recovery of taxes, debts, or
demands.
ESTIMATES.1
Par.
265. When to be furnished.
266-267. To be submitted through Secre-
tary of the Treasury.
268. Statement of prior appropriations.
Par.
269. Report of persons employed in pub-
lic buildings.
270. Report of rented buildings.
Estimates, 265. It shall be the duty of the heads of the several
when to be fur- -.-,.»->. i <» i /Y>
nished. Executive Departments, and of other officers authorized
Mar. 3, 1875, s.
3, v. is, p. 370. or required to make estimates, to furnish to the Secretary
of the Treasury, on or before the tirst day of October of
each year, their annual estimates for the public service, to
be included in the Book of Estimates prepared by law under
his direction; and the Secretary of the Treasury shall sub-
mit, as a part of the appendix to the Book of Estimates,
such extracts from the annual reports of the several heads
1 For provisions of law in respect to the preparation and submission of estimates by
the several Executive Departments, see the title "Estimates," in the chapter entitled
THE EXECUTIVE DEPARTMENTS.
MILITARY LAWS OF THE UNITED STATES. 105
of Departments and Bureaus as relate to estimates for
appropriations, and the necessities therefor. Sec. 3, <n-t
of March 3, 1875 (18 Stat. Z., 370).
266. Hereafter all estimates of appropriations and esti- Estimates to
.,,,,... ... be submitted
mates or deficiencies in appropriations intended tor the through secre-
. n -i , • ,1 ,. ,. <, ., tary of the Treas-
consideration and seeking the action ot any of the com- ury.
mittees of Congress shall be transmitted to Congress 2, v. 23, p. 254.'
through the Secretary of the Treasury, and in no other
manner; and the said Secretary shall first cause the same
to be properly classified, compiled, indexed, and printed,
under the supervision of the chief of the Division of
Warrants, Estimates, and Appropriations of his Depart-
ment. Sec. #, act of July 7, 1884 (&? Stat. Z., 254).
267. All annual estimates for the public service shall The same.
SIM* *{fUi*l It S
be submitted to Congress through the Secretary of the
Treasury, and shall be included in the Book of Estimates
prepared under his direction.
268. The Secretary of the Treasury shall annex to the statement of
. ^ . prior appropria-
annual estimates of the appropriations required for thetions.
S^c. 3070, K.S»
public service a statement ot the appropriations for
the service of the year which may have been made by
former acts.
269. Hereafter the Secretary of the Treasurv shall Repairs to pub-
. J . „ „ -_. . " lie buildings, etc.
annually report to Congress in the Book ot Estimates a Aug. so, 1890,
statement of the expenditure of the "appropriation for
repairs and preservation of public buildings " which shall
show the amount expended on each public building and
the number of persons employed and paid salaries from
such appropriation.1 Act of August 30, 1890 (26 Stat. Z.,
371).
270. Hereafter it shall be the duty of the Secretary of Report of
J . j buildings rented
the 1 reasury to cause to be prepared and submitted to in the District of
J Columbia.
Congress each year, in the annual Book of Estimates ot July ie, i»92,
^ v. 27, p. 183.
Appropriations, a statement of the buildings rented in the
District of Columbia for the use of the Government, the
purposes for which rented, and the annual rental for each.2
Act of July 16, 1892 (27 Stat. Z., 183).
1 The act of March 3, 1887 (24 Stat. L., 509), requires the Secretary of the Treasury
to report, annually, the number, etc., of persons employed in the care of public
buildings outside the District of Columbia.
2 For the requirements of law in respect to the renting of buildings in the District
of Columbia, see paragraphs 93a and 94, ante.
106
MILITARY LAWS OF THE UNITED STATES.
APPROPRIATIONS.
Par.
271. Application.
272. Expenditures not to exceed appro-
priations.
273. Expenditures of commissions and
inquiries.
Par.
274. Restriction on contingent appropria-
tions.
275. Total amount of appropriations, how
determined.
Application
of moneys appro
271. All sums appropriated for the various branches of
prMard3 1809 c expenditure in the public service shall be applied solely to
?eb i2Vi868Pc^f; ^ne objects for which they are respectively made, and for
s. 2, V. 15, p. 36. nrk rkthar« !
Sec.3678,R.S. n FS'
NO expendi- 272. No Department of the Government shall expend, in
tures beyond «% " i • ,. •
appropriations, any one iiscal year, any sum in excess 01 appropriations
1 An appropriation by Congress of a given sum of money for a named purpose is not
the designation of a specific fund for that purpose, but simply a legal authority to
apply so much of any money in the Treasury to the indicated object. Every appro-
priation for the payment of a particular demand, or a class of demands, necessarily
involves and includes the recognition by Congress of the legality and justice of each
demand and is equivalent to an express mandate to the Treasury officers to pay it.
This recognition is not affected by any previous adverse action of Congress, for the
last expression by that body supersedes all such previous action. Hukill v. IL S.,
16 Ct. Cls., 562, 585. When an appropriation has been made by Congress for a
general purpose, contemplating a multitude of acts to be done by the Department,
its agency is general within those limits. Leavitt v. U. S., 34 F. R., 623. When an
alleged liability of the Government rests wholly upon an appropriation, they must
stand or fall together, so that when the latter is exhausted the former comes to an
end. Shipman v. U. S., 18 Ct. Cls., 138.
The disposition of public money is in the discretion of Congress, and its reasons for
passing an act of appropriation and the consideration thereof can not be inquired into
nor its will thwarted by any executive officers or by the courts. Mumford v. U. S.,
31 Ct. Cls., 210, 215; Jordan v. U. S., 19; Ibid., 108; 113, U. S., 418. In view of the
requirements of this section a disbursing officer is not authorized to use public moneys
advanced to him from one appropriation in the payment of liabilities arising under
another appropriation. IV Comp. Dec., 569.
Administrative discretion in expenditures. — Ordinarily, where discretionary power is
lodged in a judicial officer, his decision is not re viewable save by the court of which
he is a member, and then only when there has been a clear abuse of the discretion
committed to him. Far more cogent reasons exist why this rule should be applied to
administrative officers, who are empowered to use their discretion as to the manner
in which public moneys shall be expended, for great embarrassment and confusion
might result if officers in one Executive Department could sit in judgment upon the
decisions of the officers of another Executive Department in cases involving the exer-
cise of judgment and discretion. Ill Comp. Dec., 21. Wherever the exercise of
discretion by the War Department in disbursing moneys appropriated for the support
of the Army is permitted by a statute, the manner in which such discretion has been
exercised is a matter of administration with which the accounting officers have no
concern. It is the province of the military authorities to determine the needs of a
given military depot or post and the quantity of a specified article to be allotted to
said depot or post, while it is the province of the accounting officers to determine
whether or not Congress has made an appropriation covering a specific expenditure,
or whether or not such expenditure was made in conformity with law. Ibid., 21.
The degree of wisdom displayed in the exercise of the discretion given an officer of
the Army, under the authority of the Secretary of War, is not a subject for review by
the accounting officers. If the officer is responsible for his action in the premises to
anyone, it is to the source from which he derived his authority. Ibid., 22.
The evidence required by the War Department from the disbursing officers and
agents of the Army for administrative purposes is a matter peculiarly within the
jurisdiction of the Secretary of War. Ibid., 497.
MILITARY LAWS OF THE UNITED STATES. 107
made by Congress for that fiscal year, or involve the Gov- July 12, 1370, c-
ernment in any contract for the future payment of money 251! *' ' v' 16>p'
. t • 4.- i Sec. 3679, R.S.
in excess o± such appropriations.
273. No accounting or disbursing officer of the Govern- Expenses of
• *« -- 11 i i commissions and
ment snail allow or pay any account or charge whatever, inquiries.
-. . , -, .,, £ . Aug. 26, 1842, c.
growing out or, or in any way connected with, any commis- 202, s. 25, v. 5, p.
sion or inquiry, except courts-martial or courts of inquiry s'ec.368i,R.s.
in the military or naval service of the United States, until
special appropriations shall have been made by law to pay
such accounts and charges. This section, however, shall
not extend to the contingent fund connected with the for-
eign intercourse of the Government, placed at the disposal
of the President.
274. No moneys appropriated for contingent, incidental
or miscellaneous purposes shall be expended or paid
official or clerical compensation.2
275. Hereafter the total amount appropriated in
various paragraphs of an appropriation act shall
1 The legal liability of the Government does not generally depend upon appropria-
tions. The constitutional provision, in Article I, section 9, that "no money shall be
drawn from the Treasury but in consequence of appropriations made by law," is a
mere limitation and restriction upon the executive officers of the Treasury Depart-
ment, and doe* not prevent Congress, the law-making power, from involving the
Government in contracts to pay money to any extent. When such contracts are
made, the parties who acquire rights to compensation thereunder must wait until an
appropriation is made before they can receive their money, but the right on their
part and the obligation on the part of the United States remain unchanged. Failing
to obtain direct appropriations for their benefit, public creditors may sue in this court
and thus obtain payment out of any money appropriated for the payment and satis-
faction of private claims. Mitchell r. U. S., 18 Ct. Cls., 281, 286. The excepting
clause in section 3732, Revised Statutes (a) in relation to contracts for and purchases
of clothing, subsistence, forage, fuel, quarters, etc., operates to withdraw such con-
tracts and purchases from the prohibition contained in this paragraph in relation to
expenditures in excess of the appropriations for a particular fiscal year, and such
purchases may be made, provided the necessities of the current fiscal year be not
exceeded.
A deficiency appropriation is one made to pay a liability legally created, for the
payment of which an appropriation previously made is insufficient; it supplements
the original appropriation, partakes of its nature, and is subject to the same limita-
tions which attach by law to the use of the original appropriation. IV Comp.
Dec., 61.
2 The Revised Statutes (section 3682) forbid money appropriated for contingent,
incidental, or miscellaneous purposes being used for official or clerical compensation.
The adjectives "contingent," "incidental," and "miscellaneous" have a technical
and well-understood meaning; and, where a specific appropriation is made for specific
objects, such as clerks, messengers, light, fuel, no disbursement can be made there-
for from the appropriation for "miscellaneous expenses." 22 Ct. Cls., 269. See, also,
for other statutory provisions respecting the disbursement of contingent funds, para-
graphs 42 and 54 to 60 ante.
The words "contingent expenses" as employed in acts making appropriations,
means such incidental, casual, and unforeseen expenses as are necessary and appro-
priate to the execution of duties required by law in connection with the object for
which the appropriation was made. IV Comp. Dec., 287. There is no discretion
conferred upon the heads of departments to use such appropriations for other pur-
poses. Ibid.
a See the chapter entitled CONTRACTS AND PURCHASES.
108 MILITARY LAWS OF THE UNITED STATES.
niinec1 by the correct footing up of the specific sums or
rates appropriated in each paragraph contained therein
unless otherwise expressly provided. Act of May £8, 1896
(29 Stat. Z., 140, 148).
Permanent a{>- 276. There are appropriated, out of any moneys in the
propriations. . -IP"
sec.3689, R.S. Treasury not otherwise appropriated, for the purposes
hereinafter specified, such sums as may be necessary for
the same respectively; and such appropriations shall be
deemed permanent annual appropriations.
UNDER THE WAR DEPARTMENT.
Bounty to soldiers:
July 28, isee, c. For payment of bounty to soldiers, or their widows or
322': Apr. 22, 1872^ legal heirs, under the twelfth, thirteenth, fourteenth, fif-
teenth, and sixteenth sections of "An act making appro-
priations for sundry civil expenses of the Government for
the year ending June thirty, eighteen hundred and sixty-
seven, and for other purposes."'
i2ALr' i V8^1!?' Payment to certain military organizations in Kansas :
PP. 64i, 642. To pay to the members of the military organizations
known as the Westport Police Guards, Hickman's Mills
Company, and Companies A, B, C, D, and E of the Kan-
sas City Station Guards, under private act of April twelve,
eighteen hundred and seventy-one, chapter twelve, the pay
and allowances of volunteers in the service of the United
States.
Traveling expenses of California and Nevada volun-
teers:
Marv2, 1867, <>. To pay for the traveling expenses of such California and
48?!' 'Nevada volunteers as were discharged in New Mexico,
Arizona, or Utah, and at points distant from the place or
places of enlistment, such proportionate sum, according to
1 Permanent appropriations are those made for an unlimited period. Indefinite
appropriations are those in which no amount is named. XIII Opin. Att. Gen., 289.
A "permanent specific appropriation" is one which requires the money payable
by virtue of it to be applied to an object specifically pointed out by law, and which
may be so applied at any time in the future, and not merely for the service of the
current fiscal year. It exists when the act of Congress which made it points out
the purpose to which it applies, and shows that it was intended to be used in the
future, without limit as to time. If the object to which it is to be applied has no
reference to, or connection with, the service of any particular year, the appropriation
may be considered as permanent, where such intention is apparent in the act making
it. If it be for the discharge of an existing obligation having no connection with
the service of the current year, and not in part discharge of a continuous service, it
may reasonably be supposed that Congress intended the liability to be paid without
reference to time. 2 Lawrence, Compt. Dec. , 2d ed. , 246; III Compt. Dec. , 623, 625.
2 By the act of March 3, 1875 (18 Stat. L., 343), the clause of the above section
making a permanent appropriation for the National Home for Disabled Volunteer
Soldiers was repealed.
MILITARY LAWS OF THE UNITED STATES. 109
the distance traveled, as has been paid to the troops of
other States similarly situated.
Allowance for reduction of wages under eight-hour
law:
Of such sum as may be required in the settlement of all Mayi8,i872,c.
accounts for the services of laborers, workmen, and mechan- 134'. 8'
ics employed by or on behalf of the Government, between
the twent}r-fifth day of June, eighteen hundred and sixty-
eight, the date of the act constituting eight hours a day's
work for all such laborers, workmen, and mechanics, and
the nineteenth day of May, eighteen hundred and sixty-
nine. the date of the proclamation of the President con-
cerning such pay, to settle and pay for the same without
reduction on account of reduction of hours of labor by
said act. when it shall be made to appear that such was
the sole cause of the reduction of wages. (See sec. 3738.)
277. The sum of one million dollars is herebv annually Annual appro-
.,-,., . ! /, • ,1 m priation for arms
appropriated, to he paid out or anv money in the Lreasurv and equipments.
. . , j £ ,y £ .,. - Apr. 23, 1808, c.
not otherwise appropriated, tor the purpose ot providing1 55,s.i,v.2, p. 490;
, ^ Apr. 29, 1816, c.
arms, ordnance stores, quartermaster stores, and camp 135, s. i, v. 3, p.
£ ,, .,.,. . . , „ I yn A. 320; Mar. 3, 1875,
equipage for issue to the militia. Act of June 6. 1900 c.i33,s.s,\.is,p.
T 455; Feb. 12, 1887,
(31 Stat. L.. 662). v. 24, p. 401.
^pf* irri K v
278. No tolls or operating charges whatsoever shall be Toils notVbe
i . i n ! 111 levied or collect-
levied or collected upon anv vessel or vessels, dredges, or ed on canals, etc.
... " , -11 Sec- 4> July 6-
other passing water cratt through any canal or other work ISM, v. 23, p. 147.
for the improvement of navigation belonging to the United
States; and for the purpose of preserving and continuing
the use and navigation of said canals, rivers, and other
public works without interruption, the Secretary of War,
upon the application of the chief engineer in charge of
said works, is hereby authorized to draw his warrant or
requisition from time to time upon the Secretary of the
Treasury to pay the actual expenses of operating and keep- acIt>ula'1m|xts ,,Ss
ing said works in repair, which warrants or requisition s of operatton mid
shall be paid by the. Secretary of the Treasury, out of any ized-
money in the Treasury not otherwise appropriated: Pro-
vided, however, That an itemized statement of said ex-
penses shall accompany the annual report of the Chief of
Engineers. Sec. 4, act of July 5, 1884 (23 Stat. Z.,
1 By the act of April 23, 1808 (2 Stat. L., 490, sec. 1661, R. S. ), a permanent appropri-
ation of $200,000 was authorized for arming and equipping the militia. This appro-
priation was increased to $400,000 by the act of February 12, 1887 (24 Stat, L., 401 ).
By the act of August 18, 1894 (28 Stat. L., 372), it was provided that the appropria-
tion should not lapse as to any unexpended portion in any fiscal year, but that such
unexpended portion should constitute a fund to be applied to the purpose contem-
plated by the statute. By the act of June 6, 1900 (31 Stat. L., 662), the annual
appropriation was increased to $1,000,000.
110 MILITARY LAWS OF THE UNITED STATES.
APPLICATION OF BALANCES.
Par. Par.
279. To be covered into the Treasury at 281,282. Disposition of balances after two
the end of fiscal year. years.
280. Appropriations for public buildings
exempt from being covered in.
batancesatofUa°f ^®' ^^ balances of appropriations contained in the
propriations. annual appropriation bills and made specifically for the serv-
July 12, 1870, c. . . . ^ J
251, s. 5, v. 16, p. ice or any fiscal year, and remaining unexpended at the
'sec. 3690, R. s. expiration of such fiscal year, shall only be applied to the
payment of expenses properly incurred during that year,
or to the fulfillment of contracts properly made within that
year; and balances not needed for such purposes shall be
carried to the surplus fund. This section, however, shall
not apply to appropriations known as permanent or indefi-
nite appropriations.1
Exemption in 280. All moneys heretofore appropriated for the con-
respect to public i i • T • i T ••
buildings. struction of public buildings and now remaining to the
v. is, p. 275. ' credit of the same on the books of the Treasury Depart-
ment, or which may hereafter be appropriated for such
buildings, shall remain available until the completion of
the work for which they are, or may be, appropriated.
And upon the final completion of said buildings, and the
payment of all outstanding liabilities therefor, the balance
aThe use of every fiscal-year appropriation is limited by section 3690 of the Revised
Statutes and by its own terms to the payment of expenses properly incurred during
the fiscal year for which it is made, or to -the fulfillment of contracts properly made
within that year; and balances not needed for such purposes must be carried to the
surplus fund and covered into the Treasury in conformity with the provisions of
section 5 of the act of June 20, 1874. (18 Stat. L., 110) ; 3 Dig., 2d Compt, Dec., par.
96. The use of any part of an appropriation made for one fiscal year for the payment
of any liability incurred during a succeeding fiscal year is prohibited by section MO?})
as well as by section 3690 of the Revised Statutes. Ibid., par. 99.
An appropriation is properly chargeable with all the expenses necessary to accom-
plish the object for which it is made, unless particular items of expense are specific-
ally provided for by some other appropriation. IV Compt. Dec. 24, I ibid., 472, 517;
II ibid., 74; III ibid., 623. There is no authority under an act of appropriation, made
specifically for the service of a particular fiscal year, to enter into a contract for sup-
plies, etc. , for the service of a subsequent fiscal year, and therefore, as to that appro-
priation, such a contract is not "properly made within that year," within the meaning
of section 3690, Revised Statutes. IV ibid., 553. AVhile'it is a rule that a specific
appropriation excludes the use, for the same objects, of a general appropriation, yet
when there are two appropriations both applicable to the same object they are to be
treated as cumulative, and either or both can be used in the discretion of the head of
the Department. Ibid., 121. See, also, I ibid., 533. The balance of an appropri-
ation which has been treated as not limited to a fiscal year will, upon the accomplish-
ment of the object for which it was made, be covered into the Treasury, in analogy
to the practice required by law (a) in the case of balances of appropriations for the
construction of public buildings. I Compt. Dec., 487.
An appropriation found in an annual appropriation act and made specifically for
the service of a certain fiscal year is not available thereafter except in payment of
expenses properly incurred, or in the fulfillment of contracts properly made within
the year as provided in section 3690 of the Revised Statutes. I Compt. Dec., 170.
a Act of June 23, 1874 (18 Stat. L., 275).
MILITARY LAWS OF THE UNITED STATES. Ill
or balances remaining shall be immediately covered into
the Treasury. Act of June $3, 187 % (18 Stat. Z., 975).
281. All balances of appropriations which shall have re- Disposal of bai-
mained on the books of the Treasury, without being drawn yeare. af
against in the settlement of accounts, for two years from June2o,i874,c.
the date of the last appropriation made by law, shall be3see?869?',ius.
reported by the Secretary of the Treasury to the Auditor
of the Treasury, whose duty it is to settle accounts there-
under, and the Auditor shall examine the books of his
office, and certify to the Secretary whether such balances
will be required in the settlement of any accounts pending
in his office; and if it appears that such balances will not be
required for this purpose, then the Secretary may include
such balances in his surplus-fund warrant, whether the
head of the proper Department shall have certified that it
may be carried into the general Treasury or not. But no
appropriation for the payment of the interest or principal
of the public debt, or to which a longer duration is given
by law, shall be thus treated.
282. From and after the first dav of July, eighteen hun- The same.
, , , , , ,, " , ,, j!A ±u June 20, 1874,s.
dred and seventy-four, and of each year thereafter, the 5, v. is, p. 85.
Secretary of the Treasury shall cause all unexpended bal-
ances of appropriations which have remained upon the
books of the Treasury for two fiscal years to be carried to
the surplus fund and covered into the Treasury: Provided,
That this provision shall not apply to permanent specific
appropriations, appropriations for rivers and harbors,
light-houses, fortifications, public buildings, or the pay
of the Nav}r and Marine Corps; but the appropriations
named in this proviso shall continue available until other-
wise ordered by Congress. Sec. 5, Act of June W, 1784
(18 Stat. Z., 85).
THE PUBLIC MONEYS.
THE TREASURY, SUBTREA8URIES, AND DEPOSITORIES.
THE TREASURER.
Par. Par.
283. The Treasurer, appointment. 286. Assistant treasurers.
287, 288. Certain mints to be depositories.
289, 290. Designated depositories.
284. Duties.
285. The Treasury of the United States.
283. There shall be in the Department of the Treasury a
Treasurer of the United States, who shall be appointed J|: j^ Jj ^
by the President, by and with the advice and consent of £•
the Senate, and shall be entitled to a salary of six thou- 18{
sand dollars a year.
112 MILITARY LAWS OF THE UNITED STATES.
Duties of the 284. The Treasurer shall receive and keep the moneys of
sept. 2, 1789, c. the United States, and disburse the same upon warrants
drawn by the Secretary of the Treasury, countersigned by
sec. n, act of the Comptroller, and not otherwise. He shall take receipts
July 31, 1894, vol. . ,. , , . • , /> n
28, p. 210. for all moneys paid by him, and shall give receipts for all
'moneys received by him; and all receipts for moneys
received by him shall be indorsed upon warrants signed
by the Secretary of the Treasury, without which warrant,
so signed, no acknowledgment for mone}r received into
the public Treasury shall be valid. He shall render his
accounts to the [Auditor for the Treasury Department]
quarterly, or oftener if required, and shall transmit a copy
thereof, when settled, to the Secretary of the Treasury*.
He shall at all times submit to the Secretary of the Treasury
and the Comptroller, or either of them, the inspection of
the moneys in his hands.1
ofTthe JnSn-eci 285' ^e rooms provided in the Treasury building at the
states. 6 1846 c seat of government for the use of the Treasurer of the
9o,s.i.v.9,p.59. United States, his assistants, and clerks, and occupied by
Cooke et al. v. "
u^s., 91 u. s., them, and the fireproof vaults and safes erected therein
sec. 3591, K.S. fOr the keeping of the public moneys in the possession and
under the immediate control of the Treasurer, and such
other apartments as are provided as places of deposit of
the public money, shall bo the Treasury of the United
States.
ASSISTANT TREASURKKS.
Appointment 286. There shall be assistant treasurers of the United
etc., of assistant ^ . . .
treasurers. btates, appointed from time to time by the President, by
90, s. 5, v! 9, p. 60; and with the advice and consent of the Senate, to serve
Apr. 7,1868,0.28,
s. 14, v. 14, p. 26: tor the term or tour vears, as follows:
June 15, 1870, c. J
12, s. i, v. 16, p.* One at .Boston.
152; Feb. 12, 1873,
c. 131, s. 65, v. 17, One at New York.
p. 435; Mar. 3, .
i873,c.229,s.5,v. One at Philadelphia.
Sec.3595,R.s. One at Baltimore.
One at New Orleans.
One at Saint Louis.
One at San Francisco.
One at Cincinnati.
One at Chicago.
certain mints 287. The mints at Carson City, and at Denver, and the
and assay offices .
to ^be deposito- assay office at Boise City, shall be places of deposit for sqch
Apr. 21, 1862, c. public moneys as the Secretary of the Treasury may direct.
383; Mar. 3, 1863.' c. 96, s. 5, v. 12, p. 770; Feb. 18, 1869, c. 33, s. 4, v. 15,
p. 271; Feb. 12, 1873, c. 131, ss. 65, 66, v. 17, p. 435. W. :{.>9-2, B. S.
1 So much of this section as required the Register of the Treasury to record war-
rants was repealed by section 11 of the act of July 31, 1894, (28 ttyt. L., 209.)
MILITARY LAWS OF THE UNITED STATES.
113
288. The superintendent of the mint at Carson City, and
the superintendent of the assay-office at Boise* City, shall
be assistant treasurers of the United States, and shall re-
spectively have the custody and care of all public moneys
deposited therein, and shall perform all the duties required
of them in reference to the receipt, safe-keeping, transfer,
and disbursement of all such moneys, as provided by law.
Superintendents
of mint at Carson
and assay office at
Boise City to be
assistant treasur-
ers.
Mar. 3, 1863, c.
96, s. 5, v. 12, p.
770; Apr. 21, 1862,
c. 50, s. 5, v. 12, p.
383; Mar. 3, 1871,
c. 113,s. I,v.l6,p.
485; Feb. 18, 1869,
c. 33, s. 4, v. 15, p.
S.
271; Feb. 12, 1873, c. 131, ss. 65, 66, v. 17, p. 435. Sec. 3594 B.
DESIGNATED DEPOSITORIES.
289. All national banking associations, designated for National banks
that purpose by the Secretary of the Treasury, shall be &SMar °f, 1901%.
., . j, IT • , I 31, p. 1448.
depositaries of public money, except receipts from cus- Sec. 5153, B. s.
toms, under such regulations as may be prescribed by the
Secretary, but receipts derived from duties on imports in
Alaska, the Hawaiian Islands, and other islands under the
jurisdiction of the United States may be deposited in such
depositaries subject to such regulations; and such deposi-
taries may also be employed as financial agents of the Gov-
ernment; and they shall perform all such reasonable duties
as depositaries of public moneys and financial agents of
the Government as may be required of them. The Secre-
tary of the Treasury shall require the associations thus
designated to give satisfactory security, by the deposit of
United States bonds and otherwise, for the safe-keeping
and prompt payment of public money deposited with them,
and for the faithful performance of their duties as finan-
cial agents of the Government. And every association so
designated as receiver or depositary of the public money
shall take and receive at par all of the national currency
bills, \)y whatever association issued, which have been
paid into the Government for internal revenue or for loans
or stocks. Act of March 3, 1901 (31 Stat. Z., 1448).
290. In places * * * where there is no treasurer
or assistant treasurer, the Secretary of the Treasury may,
when he deems it essential to the public interest, specially
authorize in writing the deposit of such public money in
any public depository, or, in writing, authorize the same
to be kept in any other manner, and under such rules and
regulations as he may deem most safe and effectual to
facilitate the payments to public creditors.
The Secretary of the Treasury is hereby authorized to
designate one or more banks or bankers in the Philippine 31, p. ess.
Islands and in the islands of Cuba and Porto Rico in which
public moneys may be deposited : Provided, That the banks
22924—08 8
Depositories.
Sec. 3620, R. S.
The same.
June 6, 1900, v
114 MILITARY LAWS OF THE UNITED STATES.
or bankers thus designated shall give satisfactory security
for the safe-keeping and prompt payment of the public
moneys so deposited by depositing in the Treasury United
States bonds to an amount not less than the aggregate sum
at any time on deposit with such banks or bankers: And
provided further, That this act shall apply to Cuba only
while occupied by the United States. Act of June 6, 1900
(31 Stat. Z., 658}.
DISBURSING AGENTS.
Par.
291. Collectors to act as disbursing agents.
292. Special disbursing agents.
293. Limit on compensation.
294. Compensation of certain disbursing
ageflts.
Par.
295. Bonds of special agents.
295a. Expenses of fiscal agents.
collectors to 291. The collectors of customs in the several collection
agents.18 ns districts are required to act as disbursing agents for the
June 12, 1858, c. , '
154, s. 17, v. 11, p. payment of all moneys that are or may hereafter be appro-
sec. 3657, K.S. priated for the construction of custom-houses, court-houses,
post-offices, and marine hospitals; with such compensation,
not exceeding one-quarter of one per centum, as the Secre-
tary of the Treasury may deem equitable and just. (See
sec. 255.)
bureinciaaentsis 292. Where there is no collector at the place of location
aoi vulp1 MI c> °^ anv Public work specified in the preceding section, the
sec. 8658, K.S. Secretary of the Treasury may appoint a disbursing agent
for the payment of all moneys appropriated for the con-
struction of any such public work, with such compensation
as he may deem equitable and fust.
compensation1™ ^93. No extra compensation exceeding one-eighth of one
is^m. 1869> v' Per centum shall in any case be allowed or paid to any
is p r4il' 18?5' V °fficer? person, or corporation for disbursing moneys
Sec-36^4'B-s- appropriated to the construction of any public building.1
^94. Any disbursing agent who has been or may be
. appointed to disburse any appropriation for any United
22, p. 306. States court-house and post-office, or other building or
grounds, not located within the city of Washington, shall
be entitled to the compensation allowed by law to collectors
of customs for such amounts as have been or may be dis-
bursed. Act of August 7, 1882 (22 Stat. L., 306).
Section 4 of the act of March 3, 1875 (18 Stat. L., 402), contained the require-
ment that this section " was intended and shall be deemed and held to limit the
compensation to be allowed to any disbursing officer who disbursed moneys appro-
priated for and expended in the construction of any public building to three-eighths
of one per centum for said services."
MILITARY LAWS OF THE UNITED STATES.
115
Sec. 3614 R S
295, Whenever it becomes necessary for the head of any Bonds of special
Department or office to employ special agents, other than a^ug/4, 1354, c.
in £ ^ A AT 1 • i 242'
officers of the Armv or Navy, who may be charged with ^3.
the disbursement of public moneys, such agents shall,
before entering upon duty, give bond in such form and with
such security as the head of the Department or office em-
ploying them may approve. Sec. 361^ jR. /S.
295a. The officers, respectively, whose duty it is made by Expensesof ns-
this Title to receive, keep, or disburse the public moneys,
as the fiscal agents of the Government, may be allowed any
necessary additional expenses for clerks, fireproof chests
or vaults, or other necessary expenses of safe-keeping,
transferring, or disbursing the moneys; but all such
expenses of every character shall be first expressly author-
ized by the Secretary of the Treasury, whose directions
upon all the above subjects, by way of regulation and
otherwise, so far as authorized by law, shall be strictly
followed b all the officers.1
TRANSFERS OF FUNDS BY THE SECRETARY OF THE TREASURY.
Par.
298. Public moneys subject to draft of the
Treasurer.
Par.
296. Funds subject to transfer.
297. Transfers from depositaries to Treas-
ury.
296. All public moneys paid into any depository shall be
subject to the draft of the Treasurer of the United States,
drawn agreeably to appropriations made by law.
297. The Secretarv of the Treasurv mav, except as pro- Transfers of
. , . .111 moneys from de-
vided in the next section, transfer the moneys in the hands positaries to
of any depositary of public moneys to the Treasur}^ of the Aug. e/iwe, c.
United States to the credit of the Treasurer; and he may see. sWo, R. s.'
transfer moneys in the hands of one depositary to any other
depositary, as the saf ety of the public moneys and the con-
venience of the public service shall seem to him to require.
298. All moneys paid into the Treasury of the United
States shall be subject to the draft of the Treasurer.
for the purpose of payments on the public account the
Treasurer is authorized to draw upon any of the deposi-
taries, as he may think most conducive to the public inter-
est and to the convenience of the public creditors. Each
depositary so drawn upon shall make returns to the Treas-
ury and Post-Office Departments of all moneys received
1 An officer charged with the duty of safely keeping and paying over public mon
is not relieved from liability although it is destroyed by fire while in his possessi
and without negligence on his part. I Compt. Dec., 191.
116 MILITARY LAWS OF THE UNITED STATES.
and paid by him, at such times and in such forms as shall
be directed by the Secretary of the Treasury or the Post-
master-General.
DEPOSIT or PUBLIC; MONEY.
Par. I Par.
299-300. Collectors and receivers, etc., to
deposit public funds.
301. Duty of disbursing officers.
302. Penalty for failure to deposit
funds.
303. Duties of disbursing officers as cus-
todians of public funds.
304. Reports of Treasurer, etc.
to ^99. All collectors and receivers of public money of every
in description, within the District of Columbia, shall, as often
9oAsUf'v6'98p6'6i: as tnev mav be directed by the Secretar}T of the Treasury
§ibs es v87!3?' p' or the Postmaster-General so to do, pay over to the Treas-
43|'ec 3616 B s urer °^ the United States, at the Treasury, all public
moneys collected by them or in their hands. All such col-
lectors and receivers of public moneys within the cities of
New York, Boston, Philadelphia, New Orleans, San Fran-
cisco, Baltimore, Charleston, and St. Louis shall, upon
the same direction, pay over to the assistant treasurers in
their respective cities, at their offices, respectively, all the
public moneys collected by them, or in their hands; to be
safely kept by the respective depositaries, until otherwise
disposed of according to law. It shall be the duty of the
Secretary and Postmaster-General, respectively, to direct
such payments by the collectors and receivers at all the
Said places, at least as often as once in each week, and as
much oftener as they may think proper.
300. All marshals, district attorneys, and other persons
- than those mentioned in the preceding section, having
T?easu?y°ne: m public money to pay to the United States, may pay the
9ofsUi5 , v I9?v'.62; same to any depositary constituted by or in pursuance of
23o,ys.8iii,8v0> iei law, which may be designated by the Secretary of the
P's2ec6.'36i6,R.s. Treasury.
buying °offi(?ere 301t Jt sha11 be the duty of every disbursing officer hav-
monly publicing any public money intrusted to him for disbursement
m^VVif'p ^° Deposit the same with the Treasurer or some one of the
c^eTv.'iS'p.m assistant treasurers of the United States, and to draw for
Sec. 8620, R.S. the same, only as it may be required for payments to be
made by him in pursuance of law [and draw for the same
only in favor of the persons to whom payment is made] ; and
all transfers from the Treasurer of the United States to a
disbursing officer shall be by draft or warrant on the Treas-
ury or an assistant treasurer of the United States. In
places, however, where there is no treasurer or assistant
treasurer, the Secretary of the Treasury may, when he
MILITARY LAWS OF THE UNITED STATES. 117
deems it essential to the public interest', specially authorize
in writing the deposit of such public money in any other
public depositor}^, or, in writing, authorize the same to be
kept in any other manner, and under such rules and regu-
lations as he ma}7 deem most safe and effectual to facilitate
the payments to public creditors. (See sec. 64.88, It. S.)
302. Every person who shall have moneys of the United , Penalty for
- L J failure to deposit.
States in his hands or possession, and disbursing officers nf^f'g3^18^' c-
having money sin their possession not required for current 24|ec 5 Ma
expenditure, shall pay the same to the Treasurer, an assist- 18^- \J&J-J9-
see. .»*!!: I , K. S.
ant treasurer, or some public depositary of the United
States, without delay, and in all cases within thirty days of
their receipt. And the Treasurer, the assistant treasurer,
or the public depositary shall issue duplicate receipts for
the moneys so paid, transmitting forthwith the original to
the Secretary of the Treasury, and delivering the duplicate
to the depositor: Provided, That postal revenue and debts
due to the Post-Office Department shall be paid into the
Treasury in the manner now required by law.
303. The Treasurer of the United States, all assistant u Duties of dis-
. , , . , . bursmg officers
treasurers, and those performing" the duties ot assistant as custodians of
7 L public moneys.
treasurer, all collectors of the customs, all surveyors of the Aus- 6» 1846. c.
. ,. .»-,-,. 90, s. 6, v. 9, p. 60;
customs, acting also as collectors, all receivers or public Mar- 3> 1857. c-
moneys at the several land offices, all postmasters, and all 249- July 3,1352,
J ' c. 54, s. 7, v. 10, p.
public officers of whatsoever character, are required to^Mar.s.ises.c.
' * 96, s. 5, v. 12, p.
keep safely, without loaning, using, depositing in banks, 01" ^i/d^y'il64'
exchanging for other funds than as specially allowed by wsj^pr'^utt,
law, all the public money collected by them, or otherwise 382; Feb.'i8,i869,
J J c. 33, s. 4, v. 15, p.
at any time placed in their possession and custody, till the 271.^ ^^ R g
same is ordered, by the proper Department or officer of
the Government, to be transferred or paid out; and when
such orders for transfer or payment are received, faithfully
and promptly to make the same as directed, and to do and
perform all other duties as fiscal agents of the Government
which may be imposed by any law, or by any regulation of
the Treasury Department made in conformity to law. The
President is authorized, if in his opinion the interest of the
United States require the same, to regulate and increase
the sums for which bonds are, or may be, required by law,
of all district attorneys, collectors of customs, naval offi-
cers, and surveyors of customs, navy agents, receivers and
registers of public lands, paymasters in the Army, Commis-
sary-General, and by all other officers employed in the dis-
bursement of the public moneys, under the direction of the
War or Navy Departments. (See sees. 51f£9-5497, E. S.)
118
MILITARY LAWS OF THE UNITED STATES.
«*04. The Treasurer, each assistant treasurer, and each
desi&nated depositary of the United States, and the cash-
ier °f eac^ °^ the national banks designated as such
70, s. 6, v. H, p. depositaries, shall, at the close of business on every thir-
Sec. 810, R. s. tieth day of June, report to the Secretary of the Treasu^
the condition of every account standing, as in the preced-
ing section specified, on the books of their respective
offices, stating the name of each depositor, with his official
designation, the total amount remaining on deposit to his
credit, and the dates, respectively, of the last credit and
the last debit made to each account. And each disbursing
officer shall make a like return of all checks issued by him,
and which may then have been outstanding and unpaid
for three years and more, stating fully in such report the
name of the payee, for what purpose each check was
given, the office on which drawn, the number of the
voucher received therefor, the date, number, and amount
for which it was drawn, and, when known, the residence
of the payee.1
TENDER.
Par.
305,306. Duties and debts to United
States, in what money to be
paid.
Par.
307. National-bank notes, when receiva-
ble.
308. Treasury notes for debts of United
States.
. 6, v. 11,
o. 3473,
305- Al1 duties on imports shall be paid in gold and
com om<y? tcom certificates] or in demand Treasury
n°tes, issued under the authority of the acts of July seven-
23 IBS? c teen, eighteen hundred and sixty-one, chapter five, and
p. February twelve, eighteen hundred and sixty -two, chapter
s. twenty ; and all taxes and all other debts and demands
than duties on imports, accruing or becoming due to the
United States, shall be paid in gold and silver coin, Treas-
ury notes, United States notes, or notes of national banks.
^ 306> ^° £ol(* or s^ver other than coin of standard fine-
h e u n uVd ness °* tne United States, shall be receivable in payment
StAug 31 1852 c °^ ^ues t° the United States, except as provided in sec-
twenty-three hundred and sixty -six, Title " PUBLIC
n Cp5i'^s' 2'3' LANDS," and in section thirty -five hundred and sixty -seven,
Sec.8474,'B.S. Title "COINAGE, WEIGHTS, AND MEASURES."
9?8'
1 For statutes regulating the transfer, safe-keeping, deposit, and disbursement of
public moneys, see the title " Disbursing officers" in the chapter entitled "THE STAFF
DEPARTMENTS."
MILITARY LAWS OF THE UNITED STATES.
119
307. The notes of national banks shall be received at National-bank
par for all debts and demands owing b}^ the United States cej™ele'
to any person within the United States, except interest on 5^'s>23''v- 13' P-
the public debt, or in redemption of the national currency. s'ec.g475,R.s.
(See sec. 5182, ft. 8.)
308. Treasury notes bearing" interest may be paid to anv Treasury notes
, J payable for debts
creditor of the United States at their face value, excluding of united states.
interest, or to any creditor willing to receive them at par, ™> s. 2, V. 12,' p.
. , , . . . ' 710; June 30,
including interest. 1864, c. 172, 8. 2, v.
Par.
OUTSTANDING CHECKS.
Par.
13, p. 218.
Sec.8476, U.S.
311. Payment of outstanding checks.
312. Accounts of disbursing officers re-
maining unchanged for three years.
fi6 c
v- >14»
S.
309. Checks outstanding over three years
to be covered into the Treasury.
310. Vouchers for drafts remaining un-
paid.
309. At the termination of each fiscal year all amounts of
moneys that are represented by certificates, drafts, or
checks, issued by the Treasurer, or by any disbursing offi-
cer of any Department of the Government, upon the Treas- 70> g-
urer or any assistant treasurer, or designated depositary »**•
of the United States, or upon any national bank desig-
nated as a depositary of the United States, and which
shall be represented on the books of either of such offices
as standing to the credit of any disbursing officer, and
which were issued to facilitate the payment of warrants,
or for any other purpose in liquidation of a debt due from
the United States, and which have for three years or more
remained outstanding, unsatisfied, and unpaid, shall be
deposited by the Treasurer, to be covered into the Treasury
by warrant, and to be carried to the credit of the parties
in whose favor such certificates, drafts, or checks were
respectively issued, or to the persons who are entitled to
receive pay therefor, and into an appropriation account to
be denominated "outstanding liabilities."1
310. The certificate of the Secretary of the Treasury
stating that the amount of any draft issued by the Treas- unjJayd2, isee, c.
urer, to facilitate the payment of a warrant directed
him for payment, has remained outstanding and unpaid 16^j
1 When a claim passes into the form of checks, its legal character changes from that
of a demand for goods sold and delivered to a claim represented by the checks given
in liquidation of the original demand. The fund established by section 306, Revised
Statutes, bears upon it the impress of a trust, and the statutes of limitation can not
be set up against money credited to the claimant in the permanent appropriation for
outstanding liabilities. Such money is held as a trust fund payable on demand with-
out limit of time. 32 Ct. Cls., 30; U. S. v. Taylor, 104 U. S., 216.
120 MILITARY LAWS OF THE UNITED STATES.
for three years or more, and has been deposited and cov-
ered into the Treasury in the manner prescribed by the
preceding section, shall be, when attached to any such
warrant, a sufficient voucher in satisfaction of any such
warrant or part of any warrant, the same as if the drafts
correctly indorsed and fully satisfied were attached to such
warrant or part of warrant. And all such moneys men-
tioned in this and in the preceding section shall remain as
a permanent appropriation for the redemption and pay-
ment of all such outstanding and unpaid certificates, drafts,
and checks.
Payment of 31 1. The payee or the bona fide holder of any draft or
outstanding " J ~
drafts. check the amount of which has been deposited and cov-
May 2, 1866, c.
14, p. 42. ered into the Treasury pursuant to the preceding sections,
* shall, on presenting the same to the proper officer of the
Treasury , be entitled to have it paid by the settlement of
an account and the issuing of a warrant in his favor,
according to the practice in other cases of authorized and
liquidated claims against the United States. Sec. 308, R. S.
70, s. 3, v.
offi- *^. ^ke amounts, except such as are provided for in
forlhrSCyeaanrfed sect^on tnree hundred and six, of the accounts of every
70^5 v'i4866>42 'kind of disbursing officer, which shall have remained
Sec.'aoo, R. s. unchanged, or which shall not have been increased by any
new deposit thereto, nor decreased by drafts drawn thereon,
for the space of three years, shall in like manner be cov-
ered into the Treasury, to the proper appropriation to
which they belong; and the amounts thereof shall, on the
certificate of the Treasurer that such amount has been
deposited in the Treasury, be credited by the proper
accounting officer of the Department of the Treasury on
the books of the Department, to the officer in whose name
it had stood on the books of any agency of the Treasury,
if it appears that he is entitled to such credit.
CHAPTER VI.
THE POST-OFFICE DEPARTMENT.
Par. Par.
313. Establishment of the Post-Office De- 322, 323. Senators, members, etc., may
partment. send documents free.
314. Oath of office. j 324, 325. Extension of franking privilege.
315. Oath, before whom taken. Official mail of Smithsonian In-
316. Classes of mail matter. First class. stitution.
317. Rates of postage. Soldiers' letters.
318. Special-delivery stamps.
319. Specially stamped letters to be de-
livered.
320. Letters on official business may be
sent free. Penalty for using offi-
cial envelopes to avoid payment
326. Return penalty envelopes.
327. Mail matter of Executive Depart-
ments, etc., may be registered
free.
328. Postmaster-General to contract for
all envelopes for Executive De-
partments.
of postage. I 329-331. Post-offices at military camps.
321. Official envelopes to be provided.
How franked.
313. There shall be at the seat of Government an Exec-
utive Department to be known as the Post-Office Depart- ^j^™, c.
merit, and a Postmaster-General, who shall be the head j^
thereof, and who shall be appointed by the President, by |35^S3S- *• 2' v- 17>
and with the advice and consent of the Senate, and who Seo* S68' B- s'
may be removed in the same manner; and the term of the
Postmaster-General shall be for and during the term of
the President by whom he is appointed, and for one month
thereafter, unless sooner removed.
314. Before entering upon the duties of his office and J^M^C,
before he shall receive any salary the Postmaster-General fp; s> 15>v>17'p>
and each of the persons employed in the postal service shall 15ftai8,pJ974' "'
respectively take and subscribe before some magistrate or Sec> 8^1' K> s'
other competent officer the following oath: "I, A. B., do
solemnly swear (or affirm) that I will faithfully perform
all the duties required of me, and abstain from everything
forbidden by the laws in relation to the establishment of
post-offices and post-roads within the United States; and
that I will honestly and truly account for and pay over any
money belonging to the said United States which may come
into my possession or control ; and I also further swear that
121
122 MILITARY LAWS OF THE UNITED STATES.
I will support the Constitution of the United States; so
help me God." Sec. 15, act of March 5, 1874 (18 Stat.
Z., 19).
oath, before 315. This oath or affirmation may be taken before anv
whom taken. . *
^ June 8,^1872, c. officer, civil or military, holding a commission under the
28?! ' United States, and such officer is hereby authorized to
15, v. is, p. 19. administer and certify such oath or affirmation. Ibid.
»6C. 'W'l. R. S.
CLASSIFICATION OF MAIL MATTER.
matter68 °f mail 316< Mailable matter shall be divided into four classes:
7 ^20 p'35879' s' First, written matter;
Second, periodical publications;
Third, miscellaneous printed matter;
Fourth, merchandise.
First class. Mailable matter of the first class shall embrace letters,
postal cards, and all matters wholly or partly in writing,
except as hereinafter provided.1
RATES OF LETTER POSTAGE.
^Rates of post- 3^7 Qn mailable matter of the first class, except postal
voY'S p^sse885' cards and drop letters, postage shall be prepaid at the rate
of two cents for each ounce or fraction thereof; postal
cards shall be transmitted through the mails at a postage
charge of one cent each, including the cost of manufac-
ture; and drop letters shall be mailed at the rate of two
cents per ounce or fraction thereof, including delivery at
letter-carrier offices, and one cent for each ounce or frac-
tion thereof where free delivery by carrier is not estab-
^soidierc' it- }jsne^ The Postmaster-General may, however, provide
by regulation, for transmitting unpaid and duly certified
letters of soldiers, sailors, and 'marines in the service of
the United States to their destination, to be paid on
delivery.2 Act of March 3, 1885 (23 Stat. Z., 386).
SPECIAL DELIVERY.
318. A special stamp of the face valuation of ten cents
i885,c'voi .M2s*' p.' may be provided and issued, whenever deemed advisable
or expedient, in such form and bearing such device as may
meet the approval of the Postmaster-General, which, when
attached to a letter, in addition to the lawful postage
1 For description of matter embraced in the second, third, and fourth classes see
the act of March 3, 1879 (20 Stat, L., 358) .
2 This statute replaces the corresponding provision of the act of March 3, 1879, (20
Stat, L., 358.)
MILITARY LAWS OF THE UNITED STATES.
thereon, the delivery of which is to be at a free-delivery
office, or at any city, town, or village containing a popula-
tion of four thousand or over, according to the Federal
census, shall be regarded as entitling such letter to im-
mediate delivery within the carrier limit of any free-
deli very 'office which may be designated by the Postmaster-
General as a special-delivery office, or within one mile of
the post-office at any other office coming within the pro-
visions of this section which may in like manner be desig-
nated as a special-delivery office. Sec. 3, act of March 3,
1885(83 Stat. L., 386}.
319. Such specially stamped letters shall be delivered st|nP |dc
from seven o'clock ante meridian up to twelve o'clock mid- toSecd4el^fJed-
night at offices designated by the Postmaster-General under
section three of this act. Sec. h ibid.
OFFICIAL LETTERS.
320. It shall be lawful to transmit through the mail, free Letters, etc.,on
' . official business
of postage, any letters, packages, or other matters relating may be sent free.
exclusively to the business of the Government of the
United States: Provided. That every such letter or pack- sec. 5, Mar. 3,
, „ n T 1877, v. 19, p. 335.
age to entitle it to pass free shall bear over the words
u Official business " an endorsement showing also the name
of the department, and, if from a bureau or office, the
names of the department and bureau or office, as the
case may be, whence transmitted. And if any person Penalty for us-
. -IT. ing official envel-
shall make use of anv such official envelope to avoid the opes to avoid
. , payment of post-
pay mentot postage on his private letter, package, or other age
matter in the mail, the person so offending shall be deemed
guilty of a misdemeanor, and subject to a fine of three
hundred dollars, to be prosecuted in any court of compe-
tent jurisdiction.1 Sec. 5, act of March 3, 1877 (19 Stat.
Z., 336).
321. For the purpose of carrying this act into effect, it o °ffic/0albeenp7i
shall be the duty of each of the Executive Departments vl^|d;6 md
of the United States to provide for itself and its subordi-
nate offices the necessary envelopes; and in addition to the
indorsement designating the department in which they th^"emellt
are to be used, the penalty for the unlawful use of these
envelopes shall be stated thereon. Sec. 6, ibid.
1 For regulations respecting the use of penalty envelopes in the transmission of
official correspondence, see paragraphs 813-817 Army Regulations of 1895, Circular 12,
A. G. O., 1895; Circulars of June 29, 1895; July 13, 1895, and G. O. 8, A. G. O., 1897.
These envelopes are for use in domestic correspondence only, and will not cover
the transportation of letters to foreign countries, upon which postage stamps mils
be used.
124 MILITARY LAWS OF THE UNITED STATES.
322- Senators, Representatives, and Delegates in Con-
sem documents gress? the Secretary of the Senate, and Clerk of the House
sec. 7, ibid. of Representatives may send and receive through the
mail all public documents printed by order of Congress;1
HOW franked. an(j ^ne name of each Senator, Representative, Delegate,
Secretary of the Senate, and Clerk of the House 'shall be
•written thereon, with the proper designation of the office
he holds; and the provisions of this section shall apply to
each of the persons named therein until the first day of
December following the expiration of their respective
terms of office. Sec. 7, ibid.
en^erweit£°offi~ 323' Hereafter the Vice-President, Members and
ciais, etc. Members-elect of and Delegates and Delegates-elect to
Junco, loJH, v.
so, p. 443. Congress shall have the privilege of sending free through
the mails, and under their frank, any mail matter to any
Government official or to any person, correspondence not
exceeding two ounces in weight, upon official or depart-
mental business. Act of June 3, 1898 (30 Stat. Z., J^tf).
Extension of 324 325. The provisions of the fifth and sixth sections
franking privi- A
lcfec 3 Jui- 5 °* ^e a«t entitled "An act establishing post routes, and
1884, v. 23, p. i5s! for other purposes " approved March third, eighteen hun-
dred and seventy-seven, for the transmission of official
mail matter, be, and they are hereby, extended to all offi-
cers of the United States Government, not including
members of Congress, the envelopes of such matter in all
cases to bear appropriate indorsements containing the
proper designation of the office from which or officer from
whom the same is transmitted, with a statement of the
penalty for their misuse. And the provisions of said fifth
and sixth sections are hereby likewise extended and made
official ni a i i applicable to all official mail matter of the Smithsonian
sonian institu- Institution. Sec. 3, act of July 5, 188^(23 Stat. Z., Io8).
Return Penai 326. Any Department or officer authorized to use the
penalty envelopes may inclose them with return address to
any person or persons from or through whom official infor-
mation is desired, the same to be used only to cover such
official information, and indorsements relating thereto.
Ibid.
Mail matter of 327. Anv letter or packet to be registered by either of
Executive D e -
pitmen ts,^ etc., the Executive Departments, or bureaus thereof, or by the
teredfree. Agricultural Department, or by the Public Printer, may
be registered without the payment of any registry fee;
and any part paid letter or packet addressed to either of
1 Extended to letters addressed officially to any officer of the Government by sec-
tion 3, act of March 3, 1891 (26 Stat. L., 1081).
MILITARY LAWS OF THE UNITED STATES. 125
said departments or bureaus may be delivered free; but
where there is good reason to believe the omission to pre-
pay the full postage thereon was intentional, such letter or
packet shall be returned to the sender: Provided further ,
That this act shall not extend or apply to pension agents
or other officers who receive a fixed allowance as compen-
sation for their services, including expenses of postages.
And section thirty-nine hundred and fifteen of the Revised
Statutes of the United States, so far as the same relates to
stamps and stamped envelopes for official purposes, is
hereby repealed. Sec. 3, act of July 5, 1884 (®3 Stat.
Z., 158).
PURCHASE OF ENVELOPES FOR USE OF THE EXECUTIVE DEPARTMENTS.
328. The Postmaster-General shall contract for all envel-
con-
r 1
opes, stamped or otherwise, designed for sa*e to the pub- ^jj* f°r
lie, or for use by his own or other Departments, and may JJ^JjJ® DePart
con tract for them to be plain or with such printed matter 1Qafc- 9£'«Jan; •£
loyo, v. ^o, p. 0^4
as may be prescribed by the Department making requisition
therefor: Provided, That no envelope furnished by the
Government shall contain an}^ business address or adver-
tisement. * Sec. 96, act of Jan nary 12, 1895 (28 Stat. L. ,
ESTABLISHMENT OF POST-OFFICES AT MILITARY CAMPS.
329. During the continuance of the existing war the of
Postmaster-General may, in his discretion, establish a 30Jun^3| 1898> v-
temporary post-office at any military post or camp for the
purpose of supplying the officers and troops there en-
camped with mails, the location of which post-office may
at any time be changed to an}^ other post or camp. On
the establishment of such post-office he shall cooperate
with the Secretary of War or officer commanding such
post or camp for the purpose- of securing the detail of an
officer of the Regular or Volunteer Army of suitable rank
to act as postmaster, who shall, when the exigency will
permit, execute a bond to the United States as such, and
of a sufficient number of noncommissioned officers and
privates to act as clerks in said post-office, who shall serve
as such without additional salary, pay, or compensation
other than that attaching to their rank and position in the
Army. Each of said persons shall, before entering upon
the discharge of his duties, take the oath prescribed for
lln the event of an exigency requiring the immediate delivery of envelopes, the
head of the Department in which the exigency exists may make the purchase required
by the exigency. XXI Opin. Att. Gen., 181.
126 MILITARY LAWS OF THE UNITED STATES.
persons employed in the postal service. In any case
where it is deemed impracticable by the military authori-
ties to detail persons from the Army to act as postmaster
or clerks the Postmaster-General is authorized to appoint
a civilian as postmaster, and also to make a special order
allowing to him reasonable compensation for clerical serv-
ices and to meet the necessary expenses of said office, as
well as a proportionate increase of salary to the postmaster
during the period of such extraordinary business as may
attach to his office, under the provisions of section thirty-
eight hundred and sixty-three, Revised Statutes, payable
out of the appropriations for the postal service. He may
also provide for the issue and payment of money orders
at any post-office established under the provisions of this
act after the postmaster shall have given bond as re-
quired by law. Act of June 6, 1898 (30 Stat. L., 4$%).
33°- The Postmaster-General shall supply to post-offices
referred to in the preceding section all necessary postage
stamps, stamped envelopes, postal cards, and other sup-
plies of whatever description. He may also prescribe regu-
lations for the conduct of the business at such post-offices
in conformity, so far as the same may be applicable, to the
regulations relating to the ordinary postal service. Sec.
2, ibid.
331. In any case where, in the judgment of the Post-
master-General, any military post or camp can be better
and more economically supplied by a branch post-office, he
may, without reference to its distance from the main office,
establish the same and meet the expenses thereof by special
order, as in the case of post-offices referred to in the pre-
ceding section. lSec. 3, ibid.
TThe act of June 2, 1900 (31 Stat. L., 253), and subsequent acts of appropriation
make provision for the "postal service in the Philippine Islands or territory held by
military occupation, and for additional transportation to and from said territory, also
including postal service for military camps or stations, to be used in the discretion of
the Postmaster-General."
CHAPTER
THE DEPARTMENT OF JUSTICE— HABEAS CORPUS—
THE COURT OF CLAIMS.
THE DEPARTMENT OF JUSTICE.
Par.
332. Establishment of Department of
Justice.
333. Solicitor-General.
334. Title to land to be examined.
335. Suspension of statute.
Par.
340. Conduct and argument of cases.
341. Performance of duty by officers of
Department of Justice.
342. Officers of the Department to per-
form all legal services required for
336. Duties of Attorney-General. other Departments.
337. Opinion of Attorney-General upon
343. Attendance of counsel.
344. Interest of United States in pending
suits, who may attend to.
345. Publication of opinions.
346-361. The writ of habeas corpus.
362-417. The Court of Claims.
questions of law.
338. Legal advice to Departments of War
and Navy.
339. Reference of questions by Attorney-
General to subordinates.
332. There shall be at the seat of government an Execu-
tive Department to be known as the Department of Jus- Justlce-
tice, and an Attorney-General, who shall be the head M^^vS17p?92;
thereof June 22> 1870> c* 150> s~ 1> v* 16> p- 162' ^ec* 846' s"
333. There shall be in the Department of Justice an offi- J^licitol'-Gen-
cer learned in the law, to assist the Attorney-General in i^fe^\^8u,'p.
the performance of his duties, called the Solicitor-General, v^Jsf p!^9?2. 1884>
who shall be appointed by the President, by and with the Sec> 847» B* s*
advice and consent of the Senate, and shall be entitled to
a salary of seven thousand dollars a year. In case of a
vacancy in the office of Attorney-General, or of his absence
or disability, the Solicitor-General shall have power to exer-
cise all the duties of that office.
EXAMINATION OF TITLES.
334. No public money shall be expended upon any site bj
or land purchased by the United States for the purposes |t^tees ' Se_t n
of erecting thereon any armory, arsenal, fort, fortification, J^p^Sfc. °' 6>
navy -yard, custom-house, light-house, or other public build- Sec- 866' B> 8*
ing, of any kind whatever, until the written opinion of the
127
128 MILITABY LAWS OF THE HOTTED STATES.
Attorney-General shall be had in favor of the validity of
the title, 1 nor until the consent of the legislature of the
State in which the land or site may be, to such purchase,
has been given. The district attorneys of the United
States, upon the application of the Attorney-General, shall
furnish any assistance or information in their power in
relation to the titles of the public property lying within
their respective districts. And the Secretaries of the De-
partments, upon the application of the Attorney-General,
shall procure any additional evidence of title which he may
deem necessary, and which may not be in the possession
of the officers of the Government, and the expense of pro-
curing it shall be paid out of the appropriations made for
the contingencies of the Departments respectively. *
stltuKn^cases 335> In case °^ emergency when, in the opinion of the
°fjeReifeApr'u President, the immediate erection of any temporary fort
1898, v. so, p. 737. or fortification is deemed important and urgent, such tem-
porary fort or fortification may be constructed upon the
written consent of the owner of the land upon which such
work is to be placed; and the requirements of section three
hundred and fifty-five of the Revised Statutes shall not be
applicable in such cases. Joint Res. No. 18, of April 11,
1898(30 Stat. L., 751).
OPINIONS OF ATTORNEY -GENERAL.
ney^£ifttor" 336- The Attorney -General shall give his advice and
sec. 364, R. s. Opinion upon questions of law, whenever required by the
President.
tonfey-Ge^era^ 33^' ^ne head of any Executive Department may require
offaw questionsthe opinion of the Attorney-General on any questions of
ai'ismg m the administration of his Department.2
i5oGv e' °
163! Sec. 356, R. S.
33^§ Whenever a question of law arises in the adminis-
Wiun?22N]87o'c tration of the Department of War or the Department of
150, s. e, v. 16, p. the Navy, the cognizance of which is not given by statute
set-. 357, R. s. fo some other officer from whom the head of the Depart-
ment may require advice, it shall be sent to the Attorney -
lThe Attorney-General in certifying the title of land purchased by the Government
must look at the question as one of pure law, and can not relax the rules of law on
account either of the desirableness of the object or the smallness of the value of the
land. VI Opin. Att. Gen., 432. See the chapters entitled THE PUBLIC LANDS, CON-
TRACTS AND PURCHASES, AND THE CORPS OP ENGINEERS. See, also, I Compt. Dec., 348.
2 The Attorney-General is not authorized to give an official opinion in any case.
except on the call of the President or some one of the heads of Departments. I Opin.
Att. Gen. , 211. Subordinate officers of the Government who desire an official opinion
of the Attorney-General must seek it through the head of the Department to which
they are accountable. Ibid,
MILITARY LAWS OF THE UNITED STATES. 129
General, to be by him referred to the proper officer in his
Department, or otherwise disposed of as he may deem
proper. 1
339. Any question of law submitted to the Attorney- Ref?rence of
~ i /> i • • • J questions by At-
General tor his opinion, except questions involving a con- Jorsuborcreneral
struction of the Constitution of the United States, may be17June22'1870>c-
by him referred to such of his subordinates as he may 162,' 8
, -11 • o6C. .ioh, It. o.
deem appropriate, and he may require the written opinion
thereon of the officer to whom the same may be referred.
If the opinion given by such officer is approved by the
Attorney-General, such approval indorsed thereon shall
give the opinion the same force and effect as belong to the
opinions of the Attorney-General.2
340. Except when the Attorney-General in particular
cases otherwise directs, the Attorney-General and Solicitor- ca|^t 24 1789 c
General shall conduct and argue suits and writs of error ''
and appeals in the Supreme Court and suits in the Court J
of Claims in which the United States is interested, and ]$> s- 5> v- 16« P-
the Attorney-General may, whenever he deems it for the Sec- 369' B* s-
interest of the United States, either in person conduct and
1 The Attorney-General will only give official opinions on questions of law arising
on facts which are authoritatively stated by a head of Department. X ibid. , 267. He
has no authority to settle questions of fact, nor to give advice on questions of law,
except for the assistance of the officer calling for his opinion on points stated. He
takes the facts as they are stated to him and predicates his opinion on them. Ill ibid. ,
309. It is not the duty of the Attorney-General to give opinions on questions of fact,
nor to review the proceedings of a court-martial in search of questions of law. V
ibid., 626.
The Attorney-General will not give a speculative opinion on an abstract question
of law, which does not arise in any case presented for the action of an Executive
Department. XI ibid., 189. Nor will he review the opinion of a former Attorney-
General, unless a proper case is presented therefor, and submitted by the head of a
Department. Ibid.
Where an official opinion from the Attorney-General is desired on questions of law
arising on any case, the request should be accompanied by a statement of the mate-
rial facts in the case, and also the precise questions on which advice is wanted.
XIV ibid., 367. See note to paragraph 339, post.
'2The opinions of successive Attorneys-General, possessed of greater or less amount
of legal acumen, acquirement, and experience, have come to constitute a body of legal
precedents and exposition, having authority the same in kind, if not the same in
degree, with decisions of the courts of justice. VI ibid., 326. The opinion of the
Attorney-General for the time being is, in terms, advisory to the Secretary who calls
for it; but it is obligatory as the law of the case unless, on appeal by such Secretary
to the common superior of himself and the Attorney-General, namely, the President
of the United States, it be by the latter overruled. VII ibid., 692. The Attorney-
General will not give a speculative opinion, on an abstract question of law, which
does not arise in any case presented for the action of an Executive Department.
XIX ibid. , 189. He will only give opinions on questions of law arising on facts which
are authoritatively stated by a head of Department. X ibid., 267. Although the
acts prescribing the duties of the Attorneys-General do not declare the effect of
their advice, it has been the practice of the Departments to heed it. It has been
found greatly advantageous, if not absolutely necessary, to have uniformity of action
upon analogous questions and cases; and that result is more likely to be attained
under the guidance of a single Department, constituted for the purpose, than by a
disregard of its opinions and advice. V ibid., 97.
22924—08 9
130 MILITARY LAWS OF THE UNITED STATES.
argue any case in any court of the United States in which
the United States is interested, or may direct the Solicitor-
General or any officer of the Department of Justiceto to
do so.
Performanceof 341. The Attorney-General may require any solicitor or
duty by officers J ."•*••
^Department of officer of the Department of Justice to perform any duty
June 22, 1870 c ^quired of the Department or any officer thereof.
Sec. 860, B.'s. 150, s. 14, v. 16, p. 164.
&££SS&t t to 342- Tne officers of the Department of Justice, under the
?eerv?crSraequirgead direction of the Attorney-General, shall give all opinions
ments16' Depart' and render all services requiring the skill of persons learned
i5o,Us!ei4%18i760>p' m ^ne ^aw necessary to enable the President and heads of
16|'ec. 86i, B. s. Departments, and the heads of Bureaus and other officers
in the Departments, to discharge their respective duties;
and shall, on behalf of the United States, procure the
proper evidence for, and conduct, prosecute, or defend all
suits and proceedings in the Supreme Court and in the
Court of Claims, in which the United States, or any officer
thereof, as such officer, is a party or may be interested;
and no fees shall be allowed or paid to any other attorney
or counselor at law for any service herein required of the
officers of the Department of Justice, except in the cases
provided by section three hundred and sixty-three.
counseidance °f *^' Whenever the head of a Department or Bureau
6i^es'v4i61874i2' giyes the Attorney-General due notice that the interests of
Sec.' 864, B. s. the United States require the service of counsel upon the
examination of witnesses touching any claim, or upon the
legal investigation of any claim, pending in such Depart-
ment or Bureau, the Attorney-General shall provide for
such service.
unfteTstates fn 344> ^Qe Solicitor-General, or any officer of the Depart-
mly Intend ment of Justice, may be sent by the Attorney-General to
1870 c an^ State °r District in the United States to attend to the
m St 6> ^ 16> p' interests of the United States in any suit pending in any
Sec. 367, B. s. of the courts of the United States, or in the courts of any
State, or to attend to any other interest of the United
States.
optak.nsation °f 345< ^-ne Attorney-General shall from time to time cause
i5o,u£ei!%wi60'i>: to ke edited, and printed at the Government Printing Of-
16|'ec 383 B s ^c6' an edition of one thousand copies of such of the opin-
ions of the law officers herein authorized to be given as he
may deem valuable for preservation in volumes, which shall
be, as to size, quality of paper, printing, and binding, of uni-
form style and appearance, as nearly as practicable, with
volume eight of such opinions, published, by Robert Farn-
MILITARY LAWS OF THE UNITED STATES.
131
haul, in the year eighteen hundred and sixty-eight Each
volume shall contain proper headnotes, a complete and full
index, and such footnotes as the Attorney-General may ap-
prove. Such volumes shall be distributed in such manner
as the Attorney-General may from time to time prescribe.1
HABEAS CORPUS.
Par.
346. Power of courts to issue writs of
habeas corpus.
347. Power of judges to grant writs of
habeas corpus.
348. AVrits of habeas corpus when pris-
oner is in jail.
349. Application for the writ of habeas
corpus.
350. Allowance and direction of the writ.
351. Time of return.
352. Form of return.
353. Body of the party to be produced.
354. Day for hearing.
Par.
355. Denial of return, counter allegations,
amendments.
356. Summary hearing; disposition of
party.
357. In cases involving the law of na-
tions, notice to be served on State
attorney-general.
358. Appeals in cases of habeas corpus to
circuit court.
359. Appeal to Supreme Court.
360. Appeals, how taken.
361 . Pending proceedings in certain cases,
action by State authority void.
346. The Supreme Court and the circuit and district
courts shall have power to issue writs of habeas corpus.
1 Table showing the period covered by each of the nineteen volumes of the Official Opinions
of the Attorneys- General of the United States, (a)
Opinions.
Period.
Opinions.
Period.
From—
To—
From —
To—
Vol. 1...
Aug. 21,1791
June 9,1825
Oct. 10,1835
Feb. 11,1842
July 17,1848
Mar. 12,1853
Oct. 9, 1854
July 10,1856
Mar. 24,1857
Jan. 3, 1861
Nov. 6,1863
June 6, 1825
Sept. 21, 1835
Feb. 10,1842
June 28, 1848
Mar. 3, 1853
Oct. 7,1854
July 9, 1856
Mar. 4, 1857
Dec. 17,1857
Oct. 9, 1863
July 14,1866
Vol 12
Aug. 1,1866
Mar. 11,1869
Jan. 15,1872
May 27,1875
Apr. 29,1878
Jan. 6, 1881
Apr. 23,1884
Apr. 16,1887
Jan. 14,1891
Nov. 27,1893
Mar. 3, 1869
Dec. 21,1871
Sept, 30,1874
Mar. 8, 1878
Dec. 22,1880
Apr. 19,1884
Apr. 13, 1887
Dec. 31,1890
Mar. 26,1894
Nov. 19,1897
2
13
3
14
1
5
15
16
c,
17
18
8
19
9
20
10
21
11
j From Vol. Ill, Digest of Decisions of the Second Comptroller. There is also a Digest of the Opinions
of the several Attorneys-General contained in Volumes I to XVI, inclusive.
2 The Supreme Court may issue the writ in virtue of its original jurisdiction only in
cases affecting ambassadors, other public ministers, and consuls, or in those to which
a State is a party. Ex parte Hung Hang, 108 U. S., 552. In the exercise of its
appellate jurisdiction, it may issue the writ for the purpose of reviewing the judicial
dicision of some inferior officer or court. Ibid., 553; Ex parte Bollman and Swart-
wout, 4 Cr., 75; Ex parte Watkins, 7 Pet., 568; Ex parte Wells, 18 How., 307, 328;
Ex parte Yerger, 8 Wall., 85; Ex parte Lange, 18 Wall., 163; Ex parte Parks, 93 U. S.,
18; Ex parte Virginia, 100 U. S., 339; Ex parte Siebold, 100 U. S., 371. Application
to the Supreme Court for the issue of the writ must show that the case is within its
jurisdiction. In re Milburn, 9 Peters, 704.
132 MILITARY LAWS OF THE UNITED STATES.
toPgraent°writegof 347- The several justices and judges of the said courts,
h^epatS2C4°i789'c witmn their respective jurisdictions, shall have power to
Apr!1i46vi869'8c.;^ran^ wr^s °^ haoeas corpus for the purpose of an inquiry
Mar V;'i833'4c^nto ^e cause of restraint of liberty.
57, s.'7, v. 4, p.634; Feb. 5, 1867, c. 28, s. 1, v. 14, p. 386;
Aug. 29, 1842, c. 257, s. 1, v. 5, p. 639. Sec. 762, B. S.
co^pusf wahfn 348< The writ of habeas corpus shall in no case extend
3aif°ner in ^° a prisoner in jail, unless whore he is in custody under
20Sspi4^v'i7p9>8i: or ^7 color of the authority of the United States, or is com-
Ma7r.2,i833^c^67,mj^e(j for trial before some court thereof; or is in custody
Feb. 5, J^7pc^'. for an act done or omitted in pursuance of a law of the
257^ s^i' ^5 p' United States, or of an order, process, or decree of a court
^sW. 758, B. s. or Ju(*ge thereof; or is in custody in violation of the Con-
stitution or of a law or treaty of the United States; or,
being a subject or citizen of a foreign state, and domiciled
therein, is in custody for an act done or omitted under
any alleged right, title, authority, privilege, protection,
or exemption claimed under the commission, or order, or
sanction of any foreign state, or under color thereof, the
validity and effect whereof depend upon the law of nations;
or unless it is necessary to bring the prisoner into court to
testify.1
th«pwri?1ofnha- *^- Application for writ of habeas corpus shall be made
b<Feb°spi867 c ^° ^e cour^ or justice, or judge authorized to issue the
2j^ s. i, v. 14, p. same? by complaint in writing, signed by the person for
Sec. 764, B. s. wnOse relief it is intended, setting forth the facts concern-
ing the detention of the party restrained, in whose custody
he is detained, and by virtue of what claim or authority, if
known. The facts set forth in the complaint shall be veri-
fied by the oath of the person making the application.2
35°- The court> or justice, or judge to whom such appli-
WFeb 5 1867 c cati°n is made shall forthwith award a writ of habeas cor-
28^8. i. v- 14. P- pus, unless it appears from the petition itself that the party
sec. 755, B. s. js not entitled thereto. The writ shall be directed to the
person in whose custody the part}7 is detained.3
1A justice of the Supreme Court may issue the writ in any part of the United
States where he happens to be, and mav make it returnable to himself, or may refer
it to the court for determination. Ex parte Clarke, 100 U. S., 399, 403. The writ
can not be made to perform the function of a writ of error. Ex parte Virginia, 100
U. S., 339; Ex parte Reed, ibid., IS, 23. The writ may be used in connection with
the writ of certiorari to determine whether the court below acted with jurisdiction.
Ex parte Lange, 18 Wall., 163; Ex parte Virginia, 100 U. S., 339; Ex parte Siebold,
ibid., 371. This section does not require that the law therein mentioned shall be by
express act of Congress. Any obligation fairly and properly inferable from the Con-
stitution, or any duty of a United States officer to be derived from the general scope
of his duties, is a "law" within the meaning of the statute. Cunningham v. Neagle,
135 U. S., 1. See also Ex parte Dorr, 3 How., 103; Ex parte Barnes, 1 Sprague, 133;
Ex parte Bridges, 2 Woods, 428.
2See Craemer v. Washington State, 168 U. S., 124; Whitten v. Tomlinson, 160
U. S., 231; Kohe v. Lehlback, ibid., 293; Church on Habeas Corpus, 2d ed., sec. 91.
3 In the courts of the United States the practice prevailing at the common law at
the time of the adoption of the Constitution is still pursued. The writ may be granted
MILITARY LAWS OF THE UNITED STATES. 133
351. Any person to whom such writ is directed shall Timeofretum.
-, i . , . Feb. 6, 1867, c.
make due return thereof within three days thereafter, |^8- lf v- 14> p-
unless the party be detained beyond the distance of twenty Sec- 766' K- s-
miles; and if beyond that distance and not beyond a dis-
tance of a hundred miles, within ten days; and if beyond
the distance of a hundred miles, within twenty days.2
in term time or by a justice or judge of a Federal court, having jurisdiction to issue
the writ, in vacation, or at any time, and may be issued by a justice of the Supreme
Court in any part of the country, wherever he may be. Kurd, Hab. Corp., 214;
U. S. v. Clarke, 100 U. S., 403. The usual course of proceeding is for the court, on
the application of the prisoner for a writ of habeas corpus, to issue the writ and, on
its return, to hear and dispose of the case; but where the cause of imprisonment is
fully shown by the petition, the court may, without issuing the writ, consider and
determine whether, upon the grounds presented in the petition, the prisoner, if
brought before the court, would be discharged. Ex parte Milligan, 4 Wall., 2.
Under the requirements of this section, the writ, though a matter of right, does not
issue as a matter of course and may be refused if, upon the showing made in the
petition, it appear that the petitioner, if brought into court would be remanded. In
re King, 51 F. R., 434; In re Jordan, 49 F. R., 238; In re Haskell, 52 F. R., 795.
Suspension of the privilege of the writ does not suspend the writ itself. The writ
issues as a matter of course; and, on its return, the court decides whether the appli-
cant is denied the privilege of proceeding any further. Ex parte Milligan, 4 Wall. , 2.
2 The duty of an officer of the Army upon whom a writ of habeas corpus is served
is prescribed in the following paragraphs of the Army Regulations of 1901 :
Should a writ of habeas corpus issued by a State court or judge be served upon an
Army officer commanding him to produce an enlisted man or general prisoner and
show cause for his detention, the officer will decline to produce in court the body of
the person named in the writ, but will make respectful return in writing to the effect
that the man is a duly enlisted soldier of the United States or a general prisoner
under sentence of court-martial, as the case may be, and that the Supreme Court of
the United States has decided that a magistrate or court of a State has no jurisdiction
in such a case.
A writ of habeas corpus issued by a United States court or judge will be promptly
obeyed. The person alleged to be illegally restrained of his liberty will be taken
before the court from which the writ has issued and a return made setting forth the
reasons for his restraint. The officer upon whom such a writ is served will at once
report by telegraph the fact of such service direct to the Adjutant-General of the
Army and to the Commanding General of the Department.
1. The return under paragraph 1075, Army Regulations, will be made in accordance
with Form A of this order, and will refer, as in last paragraph of that form, to the
brief of authorities which follows the forms of this order, and a copy of that brief
will be annexed to the return. Should the court order the discharge of the party, the
officer making the return, or counsel, should note an appeal pending instructions
from the War Department, and he will report to the Adjutant-General the action
taken by the court and forward a copy of the opinion of the court as soon as it can
be obtained.
2. The return under paragraph 1074, Army Regulations, will be made in accordance
with Form B of this order, but a copy of the brief of authorities is not intended to
be attached to the return to writ of habeas corpus issuing from a State court. G. O.
127, A. G. O., 1900.
FORM A.
HABEAS CORPUS BY UNITED STATES COURT.
RETURN TO WRIT.
In re (name of party held)
[Writ of habeas corpus — Return of respondent.]
0
To the (court or judge) .
The respondent, Maj. , U. S. Infantry, upon whom has been served
a writ of habeas corpus for the production of - — , respectfully makes
return and states that he holds the said — — by authority of the United
134 MILITARY LAWS OF THE UNITED STATES.
lie?™! 352- The person to whom the writ is directed shall certify
^ s. i, v. 14, p. £o t^ cour^ or justice, or judge before whom it is return -
sec. 757, B. s. Q^\Q ^6 true cause of the detention of such party.
States as a soldier in the United States Army (or "as a general prisoner under sen-
tence of general court-martial") under the following circumstances:
That the said — — was duly enlisted as a soldier in the service of the
United States at -- , — — , on --- , 1900, for a term of -- years. [If the
offense is fraudulent enlistment, this recital should be omitted.]
[Here state the offense. If it is fraudulent enlistment by representing himself to
be of age, it may be stated as follows:]
That on the - day of - , 1900, at — — , -- , the said - -- ,
being then a minor, did fraudulently enlist in the military service of the United
States for the term of - years, by falsely representing himself to be over twenty-
one years of age, to wit: - years and - months; and has, since said enlistment,
received pay and allowances (or either) thereunder.
[If the offense is desertion, it may be stated substantially as follows:]
That the said — — deserted said service at — - , - , on — — ,
1900, and remained absent in desertion until he was apprehended at — — , — — ,
on --- , 1900, by — — , and was thereupon committed to the custody
of the respondent as commanding officer of the post of -- .
The said — — has been placed in confinement (or " arrest," as the case
may be), charged with said offense, and formal charges against him therefor have
been preferred, a copy of which is hereto annexed (or "are being prepared"), and
that he will be brought to trial thereon as soon as practicable before a court-martial
to be convened by the commanding general of the Department of — — (or "con-
vened by Special Orders, No. - , dated Headquarters Department of — : - ,
— , 1900, a copy of which order is hereto annexed").
[If the party held is a general prisoner, the following paragraph should be substi-
tuted for the preceding paragraph:]
That the said -- was duly arraigned for said offense before a general
court-martial, convened by Special Orders, No. -- , dated Headquarters Depart-
ment of — — , - , 1900, was convicted thereof by said court, and was sentenced
to be — — , which sentence was duly approved on the -- day of — — , 1900, by
the officer ordering the court (or "by the officer commanding said Department of
- for the time being"), as required by the 104th article of war. A copy of
the order promulgating said sentence is hereto attached.
In obedience, however, to the said writ of habeas corpus the respondent herewith
produces before the court the body of the said - — , respectfully refers to the
decisions cited in the annexed brief, and for the reasons set forth in this return prays
this honorable court to dismiss the said writ.
Major, U. S. Infantry.
Dated ,
, 1900.
FORM B.
HABEAS CORPUS BY STATE COURT.
RETURN TO WRIT.
[Make return as in case of writ by a United States court, except as to last para-
graph, for which substitute as follows:]
And said respondent further makes return that he has not produced the body of
the said , because he holds him by authority of the United States as above set
forth, and that (this court or your honor, as the case may be) is without jurisdiction
in the premises, and he respectfully refers to the decisions of the Supreme Court of
the United States in Ableman v. Booth, 21 Howard, 506, and Tarble's case, 13 Wal-
lace, 397, as authority for his action, and prays (this court or your honor) to dismiss
the writ.
Major, U. S. Infantry.
Dated — ,
, 1900.
Brief to be filed with return to a writ of habeas corpus issued by United States court in case
of a soldier whose discharge is sought under section 1117, Revised Statutes.
If a minor sixteen years old or over claims to be twenty-one years of age or over
and enlists without the consent required by section 1117, Revised Statutes, the con-
MILITARY LAWS OF THE UNITED STATES. 135
353. The person making the return shall at the same time tBofy9j the par-
bring the body of the party before the judge who granted duced-
, I . . . Fsb. 5, 1867, c.
the Writ. 28, a. l,v. 14,p.385.
Sec. 758, R. 8.
tract of enlistment is not voidable by the minor, nor by his parents or guardian if
at the time of the filing of the petition the soldier is held in pursuance of a sentence
of a court-martial, or any step has been taken with a view to bringing him before
such court.
1. CONTRACT NOT VOIDABLE BY MINOR.
ment." This the court refused to grant, holding that section 1117, Eevised Statutes
"was made for the exclusive benefit of parents and guardians," and that, quoting
from the syllabus—
"A minor over sixteen years of age, who at the time of his enlistment makes affi-
davit that he is twenty-one years of age, will not, on his own application, be released
on habeas corpus on the ground that he was a minor at the time of his enlistment,
and that the written consent of his guardian was not obtained."
(b) When soldier is in confinement.— In re Morrissey, 137 United States, 157; In re
Grimley, 137 United States, 147; In re Wall, 8 Federal Reporter, 85; In re Davison,
21 Federal Reporter, 618; In re Zimmerman, 30 Federal Reporter, 176; In re Hearn,
32 Federal Reporter, 141; In re Spencer, 40 Federal Reporter, 149; In re Lawler, 40
Federal Reporter, 233; Solomon v. Davenport, 87 Federal Reporter, 318.
In the Morrissey case the Supreme Court of the United States settles this beyond
question. Morrissey, a minor of seventeen years of age, enlisted without the consent
of his mother, who was living. He deserted, remained in concealment until he
reached his majority, and then presented himself before a recruiting officer and
demanded his discharge from the Army on the ground that he was a minor when
enlisted. The court said that the provision of section 1117, Revised Statutes,
"is for the benefit of the parent or guardian, * * * but it gives no privilege to
the minor. * An enlistment is not a contract only, but effects a change of
status. It is not, therefore, like an ordinary contract, voidable by the infant. * * *
The contract of enlistment was good so far as the petitioner is concerned. He was not
only de facto, but de jure, a soldier — amenable to military jurisdiction."
All the cases cited are instructive as illustrative of the different circumstances
under which this principle has been declared.
In the Lawler case the deserter was arrested and "held as such awaiting trial,
which will be as soon as a court-martial can be convened and organized for that
purpose."
In the case of Solomon v. Davenport, the deserter was held by a sheriff under a
warrant of United States commissioner.
In the Spencer case the court said: "The authorities which have been read to me
seem to establish very conclusively this rule — that the enlistment of a minor is
voidable, not necessarily void; and that he does really become by such enlistment,
although under age, engaged in the service of the United States, and subject to the
power and jurisdiction of the military authorities; and, such being the case, the
court-martial had jurisdiction to arrest and try him for the charge of desertion."
2. CONTRACT NOT VOIDABLE BY PARENTS OR GUARDIANS IF THE SOLDIER is HELD
PURSUANT TO A SENTENCE OF A COURT-MARTIAL OR ANY STEP HAS BEEN TAKEN
WITH A VIEW TO BRINGING HIM BEFORE SUCH COURT.
In re Kaufman, 41 Federal Reporter, 876; In re Dohrendorf etal., 40 Federal
Reporter, 148; In re Cosenow, 37 Federal Reporter, 668; In re Dowd, 90 Federal
Reporter, 718; ex parte Anderson, 16 Iowa, 595; McConologue's case, 107 Massachu-
setts, 170.
In the .Kaufman case the father sought the discharge of his son, who was held by
the military authorities and had been ordered before a military court for trial as a
deserter. Quoting from the syllabus: "A minor who enlists in the United States
Army upon his representation that he is of age, and receives pay and clothing and
afterwards deserts and is arrested as a deserter, and at the time of his petition is held
by the United States awaiting trial by a court-martial for the crime of desertion,
136 MILITARY LAWS OF THE UNITED STATES.
jnBay for hear- 354 when ^ writ ifl returne(^ a day shall be set for the
28fsei,'v5i4>?;386' hearing °f the cause, not exceeding five days thereafter,
S«T. 759, B.S. unlegS the party petitioning requests a longer time.1
tum,niciu°nte?- 355- The petitioner or the party imprisoned or restrained
tmen!meit°sns' may deny anJ of tne facts set fortn in the return, or may
28F?i,5V^8i47,'p.'a^e^e any °ther facts that may be material in the case.
^ec. 760, R. s. ^aid denials or allegations shall be under oath. The return
and all suggestions made against it may be amended, by
leave of the court, or justice, or judge, before or after the
same are filed, so that thereby the material facts may be
ascertained.
ingT^Sosttton 356- Tne court, or justice, or judge shall proceed in a
of party. summary way to determine the facts of the case, by hear-
will not be released under a writ of habeas corpus upon the ground that being a
minor his enlistment was unlawful and contrary to the Revised Statutes of the United
States."
In the Cosenow case the minor swore that he was twenty-one years and seven
months old at the time of enlistment. He deserted and at the time of the filing of
the petition was held in custody awaiting the action of the reviewing authority on
the proceedings of the court-martial. His father sought the discharge of his son on
the ground of infancy at the time of enlistment. The court refused to discharge
him, holding that "an enlistment contrary to law is not void, but voidable;" that
the court-martial had jurisdiction of the offense, and the soldier "must be
remanded to await the result of his trial."
The Dowd case arose on the application of the mother for the release of her son,
who was held under sentence of a summary court. The court held, quoting from
the syllabus: "The enlistment of a minor in the Army without the consent of his
parents or guardian, required by Revised Statutes, section 1117, is not void, but
voidable only, and while he remains in the service under such enlistment the minor
is amenable to the Articles of War, and can not be remanded to the custody of his
parents by a civil court on a writ of habeas corpus while undergoing a sentence
imposed on him by a court-martial for a violation of such articles."
In the Anderson case it appears that a minor enlisted without his father's consent,
and being held for trial before a court-martial for desertion, his father sought his
discharge on habeas corpus. The court refused to discharge the soldier, saying "he
must abide by the decision of the latter court (court-martial) before the question of
the validity of his enlistment can be determined in the civil courts on habeas corpus."
In McConologue's case the court said: "A minor's contract of enlistment is indeed
voidable only and not void, and if, before a writ of habeas corpus is sued out to avoid
it, he is arrested on charges of desertion, he should not be released by the court
while proceedings for his trial by the military authorities are pending."
Under the custom of the service the parents or guardian of a minor who enlists
without their consent can obtain his discharge upon application to the Secretary of
War, prior to the commission of a military offense. Their rights under section 1117,
Revised Statutes, are thus sufficiently protected; but when the minor has committed
a military offense the interests of the public in the administration of justice are para-
mount to the right of the parent, and require that the soldier shall abide the conse-
quences of his offense before the right to his discharge be passed upon. Die. Opin.
J. A. G., 389-390.
The soldier should not be allowed to escape punishment for his offense, even
though his parents assert their right to his services. A minor in civil life is liable to
punishment for a crime or misdemeanor, even though his confinement may inter-
fere with the rights of his parents.
1 If the service of the writ be prevented by military force, it will be ordered to be
placed on the files of the court, to be served when practicable. Ex parte Winder, 2
Clifford, 89.
An order from a subordinate in the War Department to an officer not to obey the
writ by the production of the body, is no justification to the officer. Ex parte Field,
5 Blatchford, C. C., 63.
MILITARY LAWS OF THE UNITED STATES. 137
ing the testimony and arguments, and thereupon to dis- y/f'i \18^
pose of the party as law and justice require.1 38|ec m R
357. When writ of habeas corpus is issued in the case
of any prisoner who, being a subject or citizen of a foreign
State and domiciled therein, is committed, or confined, or in
custody, by or under the authority or law of any one of the 2Sf^- ^j?- jf\
United States, or process founded thereon, on account of
any act done or omitted under an alleged right, title, author-
ity, privilege, protection, or exemption, claimed under the
commission or order or sanction of any foreign State, or
under color thereof, the validity and effect whereof depend
upon the law of nations, notice of the said proceeding, to
be prescribed by the court, or justice, or judge at the time
1 The purpose of the writ is to enable the court to inquire, first, if the petitioner is
restrained of his liberty. If he is not, the court can do nothing but discharge the
writ. Tf there is such restraint, the court can then inquire into the causes of it,
and if the alleged cause is unlawful, it must then discharge the prisoner. * * *
In the case of a man in the military or naval service, where he is, whether as an
officer or private, always more or less subject in his movements, by the very neces-
sity of military rule and subordination, to the orders of his superior officer, it should
be quite clear that some unusual restraint upon his liberty of personal movement
exists to justify the issue of the writ; otherwise every order of the superior officer
directing the movements of the subordinate, which necessarily to some extentc on-
trols his freedom of will, may be held to be a restraint of his liberty and the party
so ordered may seek relief from obedience by means of a writ of habeas corpus.
Something more than moral restraint is necessary to make a case for habeas corpus.
There must be actual confinement or the present means of enforcing it. Wales v.
Whitney, 114 U. S., 564, 571. Where a court-martial has jurisdiction of the person
and of the subject-matter and is competent to pass the sentence under which the
prisoner is held, its proceedings can not be collaterally impeached, and a writ of
habeas corpus can not be made to perform the function of a writ of error. Ex parte
Reed, 100 U. S., 13, 23; Ex parte Kearney, 7 Wheat., 38; Ex parte Watkins, 3 Pet.,
193; Ex parte Milligan, 4 Wall., 2; Ex parte Mason, 105 U. S., 696; Ex parte Curtis,
106 U. S., 371; Ex parte Carrl, ibid., 521; Ex parte Bigelow, 113 U. S., 328; Davis
v. Beason, 133 ibid., 333; In re Frederick, 149 ibid., 70; Smith v. Whitney, 116 U. S.,
167; U. S. v. Grimley, 137 U. S., 147; Johnson v. Sayre, 158 U. S., 109; In re Boyd,
49 F. R., 48; Crossley v. California, 168 U. S., 640; Ex parte Lennon, 164 Fed. Rep.,
320; In re Lawrence, 84 ibid, 99.
Where a medical director in the Navy, against whom charges had been preferred
and in whose case a general court-martial had been ordered, was placed in arrest by
the Secretary of the Navy, and notified to confine himself to the limits of the city of
Washington: Held, That this constituted no such restraint of liberty as to sustain a
writ of habeas corpus. Wales v. Whitney, 114 U. S., 564. Where a person is in
custody under process from a State court of original jurisdiction for an alleged
offense against the laws of such State, and it is claimed that he is restrained of his
liberty in violation of the Constitution of the United States, the circuit court has a
discretion whether it will discharge him upon a habeas corpus, in advance of his
trial in the court in which he is indicted; that discretion, however, to be subordi-
nated to any special circumstances requiring immediate action. When the State
court has finally acted upon the case, the circuit court has still a discretion whether,
under all the circumstances, the accused, if convicted, shall be put to his writ of
error from the highest court of the State, or whether it will proceed, by writ of
habeas corpus, summarily to determine whether the prisoner is restrained of his
liberty in violation of the Constitution of the United States. Ex parte Royall, 117
U. S., 241, 253; Ex parte Watkins, 3 Pet., 201; Ex parte Bridges, 2 Woods, 428; Ex
parte Lange, 18 Wall., 163; In re King, 51 F. R., 434; Ex parte Hanson, 28 F. R., 127,
131; In re Jordan, 49 F. R., 238; In re Lawrence, 80 ibid., 99; Ex parte Lennon,
64 ibid. , 320. Where a United States marshal in custody for an act done in pursuance
of a law of the United States is brought before a Federal court by habeas corpus and
138 MILITARY LAWS OF THE UNITED STATES.
of granting said writ, shall be served on the attorney -gen-
eral or other officer prosecuting the pleas of said State,
and due proof of such service shall be made to the court,
or justice, or judge before the hearing.
Appeals in 358. From the final decision of any court, justice, or
cases of habeas . . , . .
corpus to circuit judge interior to the circuit court, upon an application tor
Aug. 29, 1842, c. a writ of habeas corpus or upon such writ when issued, an
257, v. 5, p. 539;
Feb. 5, 1867, c. 28, appeal may be taken to the circuit court for the district in
s. 1, v. 14, p. 385; vTT .1 . ,
Mar. 27, 1868, c. which the cause is heard:
34, s. 2, v. 15, p. 44. T . ... .
Sec. 768, B. s. 1. In the case 01 any person alleged to be restrained 01
his liberty in violation of the Constitution, or of any law
or treaty of the United States.
2. In the case of any prisoner who, being a subject or
citizen of a foreign State, and domiciled therein, is com-
mitted or confined, or in custody by or under the authority
or law of the United States, or of any State, or process
discharged, he can not afterwards be tried by the State courts. Cunningham v.
Neagle, 135 U. S., 1. See, also, In re Boardman, 169 U. S., 39; Baker v. Grice, ibid.,
284; Nishimura Ekin v. U. S., 142 ibid., 651, 166 U. S., 391; lasigi?'. VandeCurr, 166
U. S., 391.
Conflict o/ State and Federal authority. — The writ of habeas corpus is a high pre-
rogative writ known to the common law, the great object of which is the liberation
of those who may be imprisoned without sufficient cause. It is in the nature of a
writ of error to examine the legality of the commitment. Ex parte Watkins, 3 Pet.,
202. The Federal courts by whom, and the cases in which, it may be issued are
described in sections 751, 752, 753, 754, 762, 763, 764, and 765 of the Revised Statutes.
Subject to the paramount authority of the National Government, by its own tribunals,
to inquire into the legality of custody of prisoners held by the United States courts
or officers, the States may inquire into the grounds on which any person in their
respective limits is restrained of his liberty. Robb v. Connolly, 111 U. S., 624. A
State court has no jurisdiction by habeas corpus to release a prisoner held by order of
Federal court. Ableman v. Booth, 21 How., 506. And a judicial officer of a State
can not, by means of a writ of habeas corpus, take and discharge a person held by
or under color of authority of the United States. If it appear upon the return to
a writ of habeas corpus that the person is detained under color of the authority of the
United States, the State court has no further jurisdiction. Tarble's case, 13 Wall.,
397. We do not question the authority of the State court or judge who is authorized
by the laws of the State to issue the writ of habeas corpus to issue it in any case
where the party is imprisoned within its territorial limits, provided it does not appear,
when the application is made, that the person imprisoned is in custody under the
authority of the United States. The court or judge has a right to inquire, in this
mode of proceeding, for what cause and by what authority the prisoner is confined
within the territorial limits of the State sovereignty. And it is the duty of the mar-
shal or other person having the-custody of the prisoner to make kno\yn to the judge
or court, by a proper return, the authority by which he holds him in custody.
* * * But after the return is made and the State judge or court judicially apprised
that the party is in custody under the authority of the United States, they can pro-
ceed no further. * * * And although, as we have said, it is the duty of the mar-
shal or other" person holding him to make known, by a proper return, the authority
under which he detains him, it is at the same time imperatively his duty to obey the
process of the United States, to hold the prisoner in custody under it, and to refuse
obedience to the mandate or process of any other Government. And consequently
it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge
or court upon a .habeas corpus issued under State authority. No State judge or
court, after they are judicially informed that the party is imprisoned under the
authority of the United States, has any right to interfere with him, or to require him
to be brought before them. And if the authority of a State, in the form of a judicial
process or otherwise, should attempt to control the marshal or other authorized officer
or agent of the United States, in any respect in the custody of his prisoner, it would
be his duty to resist it and to call to his aid any force that might be necessary to
MILITARY LAWS OF THE UNITED STATES. 139
founded thereon, for or on account of &ny act done or
omitted under any alleged right, title, authority, privilege,
protection, or exemption, set up or claimed under the com-
mission, order, or sanction of any foreign State or sover-
eignty, the validity and effect whereof depend upon the
law of nations, or under color thereof.1
359. From the final decision of such circuit court an Appeal to su-
appeal may be taken to the Supreme Court in the cases prA™g.CS^i842;
described in the preceding section. Mar. 3, 1885, v. 23, P. 437. s'ecV.'764,Pkf3|.;
360. The appeals allowed by the two preceding sections Appeals, how
shall be taken on such terms, and under such regulations Aug. 29, 1842, c.
and orders, as well for the custody and appearance of the Fe^>- 5, ISGT.'C. 28,'
person alleged to be in prison or confined or restrained of Sec.' 765,pk. si
his liberty, as for wending up to the appellate tribunal a
tr'anscript of the petition, writ of habeas corpus, return
thereto, and other proceedings, as may be prescribed by
the Supreme Court, or, in default thereof, by the court or
judge hearing the cause.2
maintain the authority of law against illegal interference. No judicial process, what-
ever form it may assume, can have any lawful authority outside of the limits of the
jurisdiction of the court or judge by whom it was issued, and an attempt to enforce
it beyond these boundaries is nothing less than lawless violence. Ableman v. Booth,
21 How., 506. A State judge has no jurisdiction to issue a writ of habeas corpus
for a prisoner in custody of an officer of the United States if the fact of such custody
is known to him before issuing the writ; and if such fact appears on the return to
the writ, all further proceedings by him are void. And if the United States officer
resist the enforcement of the State writ and is imprisoned therefor, he will be dis-
charged by the Federal court. Ex parte Sifford, 5 Am. Law Reg., O. S., 659. A
military officer of the United States is not bound to produce the body of an enlisted
soldier in answer to a writ of habeas corpus issued from a State court or judge. In
re Neill, 8 Blatch., 166. The return of a military officer to a writ of habeas corpus
need not be on oath. In re Neill, 8 Blatch., 165. The validity of the enlistment
of a soldier can not be inquired into by a State court by the issue of a writ of habeas
.corpus, and an officer of the Army may properly refuse to discharge an enlisted man
in his command upon the order of a State court. In re Farrand, 1 Abbot, 140, 147.
An officer or agent of the United States engaged in the performance of a duty
arising under the laws and authority of the United States, is not liable to a criminal
prosecution in the courts of a State for acts done by him in his official capacity. (In
re Waite, 81 Fed. Rep., 359.) An officer who, in the performance of what he con-
ceives to be his official duty, transcends his authority and invades private rights, is
answerable therefor to the Government under which he acts, and to individuals
injured by his action; but where there is no criminal intent he is not liable to answer
the criminal process of another Government. In re Lewis, 83 ibid., 159; in re Neagle,
135 U. S., 1. Federal courts have authority in habeas corpus proceedings to inquire
into the guilt or innocence of persons committed on preliminary examination by a
State tribunal on a criminal charge for acts done in the service of the United States,
so far as to determine whether the acts were done wantonly and with a criminal
intent. Ibid., 159. When an officer of the United States is sought to be held in a
State court for punishment for acts done in the performance of his duty to the United
States, it is not a sufficient reason for refusing his release upon habeas corpus that he
may raise the question of his immunity in the State court, and carry the matter by
writ of error to the United States Supreme Court, if necessary, since the operations
of the Federal Government would, in the meantime, be obstructed by the confine-
ment of its officer. In re Waite, 81 Fed. Rep., 359.
xEx parte McCardle, 6 Wallace, 318; ibid., 7 Wallace, 506; ex parte Yerger, 8,
ibid., 85.
2 For the appellate jurisdiction of the circuit court of appeals in habeas corpus cases,
see section 6 of the act of March 3, 1891. (26 Stat. L., 826).
140 MILITAKY LAWS OF THE UNITED STATES.
P™; 301. Pending the proceedings or appeal in the cases
mentioned in the three preceding sections, and until final
14 Aug.^9, 1842, c. judgment therein, and after final judgment of discharge,
lek. I', iswjcfjffii any Pi'^ceeding against the person so imprisoned or con-
Mar V3, 1893%^?; ^ne^ or restrained of his liberty, in any State court, or
p'see.' 766, K. s. ^3r or un(ler the authority of any State, for any matter so
heard and determined, or in process of being heard and
determined, under such writ of habeas corpus, shall be
deemed null and void. That no appeal shall be had or
allowed after six months from the date of the judgment or
order complained of. Act of March 3, 1893 (27Stat. L. , 751) .
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS.
The privilege 1 of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion
the public safety may require it.2
1 The privilege of the writ must here mean the right to the writ. Paschal, 141. The
power to issue the writ is not the privilege; to ask for it is. Ibid.
2 It would seem, as the power is given to Congress to suspend the privilege of the
writ in cases of rebellion or invasion, that the right to judge whether the exigency
had arisen must exclusively belong to that body. Martin v. Mott, 12 Wheat., 19; Ex
parte Milligan, 4 Wall., 2; VIII Opin. Att. Gen., 365. The privilege of the writ was
suspended by theactof March 12, 1863 (12Stat. L., 755), which contained the follow-
ing requirement: "During the present rebellion the President of the United States
is authorized to suspend the
irt thereof."
iptember 15,
1863, the President, by proclamation, suspended the privilege of the writ during the
rebellion, throughout the United States, in all cases "when, by the authority of the
President of the United States, the military, naval, and civil officers of the United
States, or any of them, held persons under their command or in their custody, either
as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or
seamen, enrolled, drafted, or mustered or enlisted in or belonging to the land or
naval forces of the United States, or as deserters therefrom, or otherwise amenable
to military law, or the Rules and Articles of War, or the rules or regulations pre-
scribed for the military or naval service by authority of the President of the United
States, or for resisting a draft, or for any other offense against the military or naval
service." See, also, United States v. Hamilton, 3 Dall., 17; Hepburn et al. v. Ellzey,
2 Cr., 445; Ex parte Bollman and Swartwout, 4 Or., 75; Ex parte Kearney, 7 Wh., 38;
Ex parte Tobias Watkins, 3 Pet., 192; Ex parte Milburn, 9 Pet., 704; Holmes v. Jen-
nison et al., 14 Pet., 540; Ex parte Dorr, 3 How., 103; Luther v. Borden, 7 How., 1;
Ableman v. Booth and United States?;. Booth, 21 How., 506; Ex parte Vallandigham,
1 Wall., 243; Ex parte Milligan, 4 Wall., 2; Ex parte McCardle, 7 Wall., 506: Ex
parte Yerger, 8 Wall., 85; Tarble's case, 13 Wall., 397; Ex parte Lange, 18 Wall.,
163; Ex part* Parks, 93 U. S., 18; Ex parte Karstendick, 93 U. S., 396.
MILITARY LAWS OF THE UNITED STATES.
141
THE COUKT OF CLAIMS.1
JURISDICTION, POWERS, AND PROCEDURE.
Par.
362. Jurisdiction.
363. Private claims in Congress, when
transmitted to Court of Claims.
364. Judgments for set-off or counter-
claim, how enforced.
365. Decree on account of paymasters,
etc.
366. Claims referred by Departments.
367. Procedure in cases transmitted by
Departments.
368. Judgments in cases transmitted by
Departments, how paid.
369. Claims growing out of treaties not
cognizable therein.
370. Claims pending in other courts not
to be prosecuted in Court of
Claims.
371. Aliens.
372. Limitation.
373. Rules of practice; contempts.
374. Oaths and acknowledgments.
375. Petition.
376. Petition dismissed if issue found
against claimant as to allegiance,
etc.
377. Burden of proof and evidence as to
loyalty.
362. The Court of Claims shall have jurisdiction to hear
and determine the following matters:
First. All claims founded upon any law of Congress,2 or 0 £ 1Jt??£tef or
upon any regulation of an Executive Department,3 or upon J^^by °con-
Par.
378. Commissioner to take testimony.
379. Power to call upon Departments for
information.
380. Testimony not to be taken, when.
381. Witnesses not excluded on account
of color.
382. Examination of claimant.
383. Testimony taken whjere deponent
resides.
384. Witnesses, how compelled to attend
before commissioners.
Cross-examination.
Witnesses, how sworn.
Fees of commissioner, by whom
paid.
Claims forfeited for fraud.
New trial on motion of claimant.
New trial on motion of United
States.
391. Payment of judgments.
Interest.
Interest on claims.
394. Payment of judgment a full dis-
charge, etc.
395. Final judgments a bar.
396-402. The Bowman Act.
403-417. The Tucker Act.
Jurisdiction.
385.
386.
387.
388.
389.
390.
392.
393.
aThe Court of Claims was established by the acts of February 24, 1855 (10 Stat.
L., 612) ; March 3, 1863 (12 Stat. L., 765), and May 8, 1872 (17 Stat. L., 85). This
court was created with a view to give legal redress to the citizen as against the Gov-
ernment where he would have had legal redress as against another citizen. It is a
curious fact, not generally known, that the example of Prussia and the German
States in guarding the private rights of persons by subjecting the Government, in
matters of account, to the judicial power of ordinary courts of justice, led to the
establishment of the Court of Claims. Brown v. U. S., 5 Ct. Cls., 571, 577. The
provisions of the act of March 3, 1863, authorizing the Court of Claims to hear and
determine, without a jury, claims against Government with set-offs, is not unconsti-
tutional. McElrath r. U. S., 102 U. S., 426.
2 A claimant presenting a claim founded upon a law of Congress has a legal right,
under section 1059, Revised Statutes, to a definitive adjudication; and the power of
the court to afford that can not be considered as interfered with by anything short
of a lodgment of the power of definitive adjudication in some other tribunal or
officer. Thomas v. U. S., 16 Ct. Cls., 522. The rejection of a claim by the account-
ing officers leaves the party to pursue his remedy at law, viz, an action in this court,
though he may have accepted the portion allowed. Long will v. U. S., 17 Ct. Cls.,
288; U. S. v. Kauffman, 96 U. S., 567.
3 Regulations of an Executive Department are rules relating to the subjects on
which a Department acts and are made by its head under an act of Congress con-
142 MILITARY LAWS OF THE UNITED STATES.
i22^i,V^'p;any contract, expressed or implied,3 with the Government
Ss.TI^.'ilJp:0^ ^he United States, and all claims which may be referred
c^^vA'sfp.^si.' ^° ^ by either House of Congress.
ferring that power and thereby giving such regulations the force of law. A mere
order of the President or of a Secretary is not a regulation. Harvey v. U. S., 3 Ct.
Cls., 38. By the term "any regulation" is doubtless intended any regulation
within the lawful discretion of the head of an Executive Department. * * *
When Congress permits regulations to be formulated and published and carried
into effect year after year, the legislative ratification must be implied. Maddox v.
U. S.,20Ct. Cls., 193, 198.
3 The jurisdiction of the Court of Claims is confined to suits arising from contracts
express or implied. Langford v. U. S., 101 U. S., 341. The United States can not be
sued in the Court of Claims on equitable considerations merely. Bonner v. U. S. , 9
Wall., 156. The language of the statutes which confer jurisdiction on the Court of
Claims excludes, by the strongest implication, demands against the Government
founded on torts. In such cases, where it is proper for the nation to furnish a rem-
edy, Congress has wisely reserved the matter for its own determination. Gibbons
v. U. S., 8 Wall., 269, 275; Keed v. U. S., 11 Wall, 591; Langford v. U. S., 101 U.
S., 341. See, also, paragraphs 339-353, post.
CONTRACTS.
The Court of Claims, in the construction and enforcement of contracts, is bound to
apply the principles which govern like contracts between individuals. U. 8.0. Smoot,
15 Wall., 36; Curtis v. U. S., 2 Ct. Cls., 144; Brooke v. U. S., ibid., 180. All questions
of salary are questions of contract, and whetherthe salary is fixed by law, or by order
of a Department under authority of law, the Government contracts" to pay the officer
his salary, and, failing to do so, a suit therefor may be maintained in this court,
whether the case arises under a revenue act or any other. Patton v. U. S., 7 Ct. Cls.,
362. The United States can no more discharge its contracts by such performance
than can an individual person do so. Congress may fail to appropriate, in whole or
in part, the money required for payment of a public creditor, and thus leave the
public officer without authority to draw money from the Treasury for that purpose,
but the indebtedness and liability remain in force. Mitchell v. U.S., 18 Ct. Cls.,
281, 287; Graham v. U. S., 1 ibid., 380; Collins v. U. S., 15 ibid., 22; French v. U. S.,
16 ibid., 419. An officer who has been wholly retired from the service, but in whose
case the order of retirement has been revoked by the President, who directs his
name to be placed on the retired list, is an officer de facto, and though illegally on
such retired list, money paid him by way of salary, so long as he holds the office in
good faith, can not be recovered back. When one claiming to be an officer renders
no service and holds no official relations with the Government, money paid him for
service may be recovered back. Miller v. U. S., 19 Ct. Cls., 338. In an action in
the Court of Claims to recover a balance claimed to be due on pay account, the United
States can set up, as a counter claim, an alleged overpayment to him on account of
pay, and can have judgment for its collection. U. S. v. Burchard, 125 U. S., 176;
McElrath v. U. S., 102 U. S., 426.
An officer can only bind the Government by acts which come within a just exer-
cise of his official power. Hunters. U. S., 5 Pet., 173, 178; The Floyd Acceptances, 7
Wall., 666; Whiteside v. U. S., 93 U. S., 247. Unless the Government has ratified a
contract of an officer in excess of his authority, or received the benefit of it, it is not
liable. The ratification of some of a series of unauthorized acts is not to be construed
to be an approval of any not specified. Pitcher v. U. S., 1 Ct. Cls., 7; De Celis r.
U.S.,13Ct,Cls.,117.
IMPLIED CONTRACTS.
To constitute an implied contract "there must have been some consideration
moving to the United States; or they must have received the money, charged with a
duty to pay it over; or the claimant must have had a lawful right to it when it was
received, as in the case of money paid by mistake. Knote v. U. S., 95 U. S., 149, 156.
A contract to reimburse is implied when the Government takes private property for
public use. Such a taking of private property by the Government when the emer-
gency of the public service in time of war, or impending public danger, is too urgent
to admit of delay, is everywhere regarded as justified, if the necessity for the use of
the property is imperative and immediate and the danger, as heretofore described,
MILITAEY LAWS OF THE UNITED STATES. 143
Second. All set-offs,1 counterclaims, claims for damages, COunte°rciLmsno1
whether liquidated or unliquidated, or other demands what- United states.
soever, on the part of the Government of the United States ^ar,. \lsfj< c-
against any person making claim against the Government76^ W59 R g'
in said court.
Third. The claim of any paymaster, quartermaster, com- 0fflCe?sbu rsing
missary of -subsistence, or other disbursing officer of the 14Ma> 1866» v-
United States, or of his administrators or executors, for
relief from responsibility on account of capture or other-
wise, while in the line of his duty, of Government funds,
vouchers, records, or papers in his charge, and for which
such officer was and is held responsible.
2
is impending; and it is equally clear that the taking of such property, under such
circumstances, creates an obligation on the part of the Government to reimburse
the owner to the full value of the service. Private rights, under such extreme and
imperious circumstances, must give way, for the time, to the public good, but the
Government must make full restitution for the sacrifice. U. S. v. Russell, 13 Wall.,
623, 629. Beneficial volunteer service does not raise an implied contract, unless
there has been an inducement, agreement, or ratification. Boston v. The District of
Columbia, 19 Ct. Cls., 31. The court has jurisdiction of a suit by a patentee for
the royalty agreed to be paid for the use of his invention by an authorized officer of
the Government. Burns v. U. S., 12 Wall., 246.
A contract is implied from the fact that 4he Government manufactured a patented
military device, without market value, on the solicitation of the patentee, that it should
pay for the right to use the invention. Palmer v. U. S., 128 U. S., 262. The United
States may be sued for use of a patented invention by its officers for its benefit if the
right of the patentee is acknowledged. Hollister v. Benedict Manufacturing Co., 113
U. S., 59; U. S. v. Burns, 12 Wall., 246. When an officer of the Government is
properly assigned to the work of devising something to be used in the public service,
the Government meeting the expenses and paying the officer his usual salary, the
Government is not liable for royalty on the invention, though it was made by the
officer previous to the time he was assigned to the work, if the labor and expense of
perfecting i,t was borne by the Government. Solomons v. U. S., 22 Ct. Cls., 335;
21 ibid., 479. The policy of the War Department of late years toward inventors has
been one of neutrality, neither denying nor admitting legal rights, but taking inven-
tions to perfect the Government arms, leaving inventors free to seek redress without
prejudice before other tribunals than an Executive Department. Berdan v. U. S.,
26 Ct. Cls., 48, 60. See, also, Clyde v. U. S., 13 Wall., 38; U. S. v. Russell, 13 Wall.,
623; U. S. v. Bostwick, 94 U. S., 53; Fichera's case, 9 Ct. Cls., 254; Macauley's
case, 11 Ct. Cls., 693; Clark's case, 11 Ct. Cls., 698; Roman et al. v. U. S., 11 Ct.
Cls., 761; Campbell's case, 13 Ct. Cls., 470.
xThe right of set-off did not exist at common law, and is everywhere founded upon
statutory regulation. Tillou v. U. S., 1 Ct. Cls., 454; 2 ibid., 588, and U. S. v. Eck-
ford, 6 Wall., 484. State laws in such a case do not constitute the rule of decision,
but the question arises, exclusively, under the act of Congress; and no local' law nor
usage can have any influence in its determination. Ibid. ; Reeside v. Walker, 11
How., 272, 290.
. 2 Under this provision relief has been afforded to a paymaster who was attacked
and robbed by highwaymen. Broadhead v. U. S., 19 Ct. Cls., 125. To a disbursing
officer for loss by the failure of a national bank, which was a designated depository.
Hobbs v. U. S., 17 ibid., 189. To a disbursing officer for money stolen from a safe.
Scott v. U. S., 18 ibid., 1; Clark v. U. S., 11 ibid., 698; Howell v. U. S., 7 ibid., 512.
To a quartermaster for money lost from his person, the money being carried in the
way such officers usually carry it on similar occasions, under circumstances utterly
free from suspicion and after diligent efforts had been made to recover the same.
Whittlesey v. U. S. , 5 ibid. , 452. To a quartermaster for m oney stolen from his room,
due precaution for its safety having been taken. Malone v. U. S., 5 ibid., 486; Norton v.
U. S., 2 ibid., 523. To a paymaster for money contained in a treasure box stolen by
soldiersat a garrison. Glenn v. U. S., 4 ibid., 501. To an engineer officer for money
captured by the enemy. Prince v. U. S., 3 ibid., 209. To a paymaster for funds and
vouchers captured by the enemy. Ruggles v. U. S., 2 ibid., 520; Moore v. U. S., ibid.,
144 MILITARY LAWS OF THE UNITED STATES.
tu?ed?nd°IbaS- Fourth. Of all claims for the proceeds of captured or
d°Ma?.pi2pe563,a.bandoned property, as provided by the act of March 12,
p/fflbf' July1!, eighteen hundred and sixty-three, chapter one hundred
3?% isfpp.8!?! and twenty, entitled "An act to provide for the collection
c?1?76^iT sfvfiij °^ abandoned property and for the prevention of frauds in
P. 243. insurrectionary districts within the United States," or by
the act of July two, eighteen hundred and sixty-four, chap-
ter two hundred and twenty -five, being an act in addition
thereto: Provided, That the remedy given in cases of seiz-
ure under the said acts, by preferring claim in the Court of
Claims, shall be exclusive, precluding the owner of any
property taken by agents of the Treasury Department as
abandoned or captured property in virtue or under color of
said acts from suit at common law, or any other mode of
redress whatever, before any court other than said Court
of Claims.1
in^cTnVresT 363« A11 petitions and bills praying or providing for the
ted6 to court^of satisfaction of private claims against the Government,
C1MarS>3 1863, c. founded upon any law of Congress, or upon any regulation
765. s' 2> v' 12) P' °f an Executive Department, or upon any contract, ex-
sec. 1060, B. s. presse(j or implied, with the Government of the United
States, shall, unless otherwise ordered by resolution of the
House in which they are introduced, be transmitted by
the Secretary of the Senate or the Clerk of the House of
Representatives, with all the accompanying documents,
to the Court of Claims.
sef-offglorncoun- 364. Upon the trial of any cause in which arw set-off,
forced1.111' ° !n~ counterclaim, claim for damages, or other demand is set
522; Beckwith v. U. S., ibid., 526; Hubbell v. U. S., ibid., 527. To an acting commis-
sary of subsistence for money expended, the expenditures being covered by vouchers
captured by the enemy. Murphy v. U. S., 3 ibid., 212.
Belief has been denied to a paymaster for money embezzled by a clerk, the loss
having been made good by the disbursing officer, under pressure, but without protest
on his part. Hall v. U. S. , 9 Ct. Cls. , 270. In the case of a paymaster for funds stolen
by an orderly detailed for messenger duty in his office. Holman v. U. S. , 11 ibid. , 642.
To a collector of revenue, for the value of revenue stamps stolen from his office, during
his absence therefrom, said collector not being a disbursing officer within the meaning
of the statute. Stapp v. U. S. , 4 ibid. , 219. To an acting commissary of subsistence in
Dakota, for money alleged to have been stolen, no testimony having been offered in
the case but his own. Pattee v. U. S., 3 ibid., 397. In a case arising under this pro-
vision, the petitioner is a competent witness to prove the amount of money lost, if the
loss itself be established by other testimony. U. S. v. Clark, 96 U. S., 37; Hobbs v.
U. S., 17 Ct. Cls., 189; Scott v. U. S., 18 ibid., 1; Broad head v. U. S., 19 ibid., 125;
Hoyle v. U. S., 21 ibid., 300. An acting commissary of subsistence is entitled to relief
under the provisions of this statute, and it is not necessary that the officer should
have given a bond to entitle him to lelief. Wood v. U. S., 25 ibid., 98. It was held
by the Supreme Court in U. S. v. Smith (14 Ct. Cls., 114, and 105 U. S., 620) that
the statute of limitation applied to cases arising under this section. See also U. S. v.
Clark, 96 U.S., 37.
1 U. S. v. Anderson, 9 Wall., 56; Pugh v. U. S., 13 Wall., 633; U. S. v. Kimball, 13
Wall., 636; U. S. v. Crussell, 14 Wall., 1; Slawson v. U. S., 16 Wall., 310.
MILITARY LAWS OF THE UNITED STATES. 145
up on the part of the Government against any person mak- g2U
ing claim against the Government in said court, the court 7g-c 1061 R' '
shall hear and determine such claim or demand both for
and against the Government and claimant; and if upon the
whole case it finds that the claimant is indebted to the Gov-
ernment, it shall render judgment to that effect, and such
judgment shall be final, with the right of appeal, as in other
cases provided for by law. Any transcript of such judg-
ment, filed in the clerk's office of any district or circuit
court, shall be entered upon the records thereof, and shall
thereby become and be a judgment of such court and be
enforced as other judgments in such courts are enforced.1
365. Whenever the Court of Claims ascertains the facts Decree ,on ac-
counts of pay-
of any loss by any paymaster, quartermaster, commissary
of subsistence, or other disbursing officer, in the cases here-
inbef ore provided, to have been without fault or negligence
on the part of such officer, it shall make a decree setting
forth the amount thereof, and upon such decree the proper
accounting officers of the Treasury shall allow to such officer
the amount so decreed, as a credit in the settlement of his
accounts.
366. Whenever any claim is made against any Executive . ciaimsreferred
J J by Departments.
Department, involving disputed facts or controverted ques- 71J^7e|5i58687g-
tions of law, where the amount in controversy exceeds s'ec. ioes, B. s.
three thousand dollars, or where the decision will affect a
class of cases, or furnish a precedent for the future action
of any Executive Department in the adjustment of a class
of cases, without regard to the amount involved in the
particular case, or where any authority, right, privilege, or
exemption is claimed or denied under the Constitution of
the United States, the head of such Department may cause
such claim, with all the vouchers, papers, proofs, and docu-
ments pertaining thereto, to be transmitted to the Court
of Claims, and the same shall be there proceeded in as if
originally commenced by the voluntary action of the claim-
ant; and the Secretary of the Treasury may, upon the
certificate of any Auditor or Comptroller of the Treasury,
direct any account, matter, or claim, of the character,
amount, or class described in this section, to be transmit-
ted, with all the vouchers, papers, documents, and proofs
pertaining thereto, to the said court, for trial and adjudica-
tion: Provided, That no case shall be referred by any head
of a Department unless it belongs to one of the several
1 Aliens U. S., 17 Wall., 207.
22924—08 - -10
146 MILITARY LAWS OF THE UNITED STATES.
classes of cases which, by reason of the subject-matter and
character, the said court might, under existing laws, take
jurisdiction of on such voluntary action of the claimant.
CaSre?ranesmitn 367< A11 cases transmitted by the head of any Depart-
ment^ Depart" nient, or upon the certificate of any Auditor or Comptroller,
7iJ? T^iirifVe' according to the provisions of the preceding section, shall
sec. 1064, B. s. ^ proceeded in as other cases pending in the Court of
Claims, and shall, in all respects, be subject to the same
rules and regulations.1
caief gTrammitn 368< The amount of any final judgment or decree ren-
ments,yhowepaid" dered in favor of the claimant, in any case transmitted to
7iJ?7ev5i58p876' ^ne Court of Claims under the two preceding sections, shall
sec. ices, B. s. j^ pajd ou£ of anv specific appropriation applicable to the
case, if any such there be; and where no such appropria-
tion exists, the judgment or decree shall be paid in the
same manner as other judgments of the said court.
369- The jurisdiction of the said court shall not extend
n^ G^m against the Government not pending therein
92*sai9 3V18^' p'on December one, eighteen hundred and sixty-two, grow-
7<Sec 1066 B s *n£ ou^ °^ or dependent on any treaty stipulation entered
into with foreign nations or with the Indian tribes.
inglai^s other 370« No Person snall fi^ or prosecute in the Court of
prosecuted to in Claims, or in the Supreme Court on appeal therefrom, any
° j^n<?4Cia«Pc' c^aim f°r or. in respect to which he or any assignee of his
78ec.8io6175'8'.ls' nas Pending in any other court any suit or process against
any person who, at the time when the cause of action al-
leged in such suit or process arose, was, in respect thereto,
acting or professing to act, mediately or immediately, under
the authority of the United States.
julei27 1868 c 37*' Aliens, who are citizens or subjects of any Govern-
276,8.2, v. 15,' p. ment which accords to citizens of the United States the
Sec. loes, B. s. right to prosecute claims against such Government in its
courts, shall have the privilege of prosecuting claims
against the United States in the Court of Claims, whereof
such court, by reason of their subject-matter and charac-
ter, might take jurisdiction.2
Ma?* seises c 3^' ^verJ claim against the United States, cognizable
92^8. 10,' v. 12,' P. by the Court of Claims, shall be forever barred unless the
Sec. 1069, B. s. petition setting forth a statement thereof is filed in the
court, or transmitted to it by the Secretary of the Senate
or the Clerk of the House of Representatives as provided
by law, within six years after the claim first accrues: Pro-
vided, That the claims of married women first accrued dur-
1 Clyde v. U. S., 13 Wall., 38.
2 CJ. S. v. O'Keefe, 11 Wall., 178; Carlisle v. U. S., 16 Wall., 147.
MILITARY LAWS OF THE UNITED STATES. 147
ing marriage, of persons under the age of twenty-one years
first accrued during minority, and of idiots, lunatics, insane
persons, and persons beyond the seas at the time the claim
accrued, entitled to the claim, shall not be barred if the
petition be filed in the court or transmitted, as aforesaid,
within three years after the disability has ceased; but no
other disability than those enumerated shall prevent any
claim from being barred, nor shall any of the said disabili-
ties operate cumulatively.
373. The said court shall have power to establish rules ti^contemp^'
for its government and for the regulation of practice i^J'fVi!?' p
therein, and it may punish for contempt in the manner ^j^fj; £ ^
prescribed by the common law, may appoint commission- 7^c 1070 R s
ers, and may exercise such powers as are necessary to
carry into effect the powers granted to it by law.
374. The judges and clerks of said court may administer krSwfegmenta"
oaths and affirmations, take acknowledgments of instru- g^^V^ras!
ments in writing, and give certificates of the same. Sec< 1071» B* s-
375. The claimant shall, in all cases, fully set forth in leb.l^is^, c.
his petition the claim, the action thereon in Congress, or JJ2.: Mai-Ts/isG?]
by any of the Departments, if such action has been had;^;^8- 12>v-12^
what persons are owners thereof or interested therein, Sec-1072>B-s-
when and upon what consideration such persons became
so interested; that no assignment or transfer of said claim,
or of any part thereof or interest therein, has been made,
except as stated in the petition; that said claimant is justly
entitled to the amount therein claimed from the United
States, after allowing all just credits and offsets; that the
claimant, and, where the claim has been assigned, the
original and every prior owner thereof, if a citizen, has at
all times borne true allegiance to the Government of the
United States, and, whether a citizen or not, has not in
any way voluntarily aided, abetted, or given encourage-
ment to rebellion against the said Government, and that
he believes the facts as stated in the said petition to be true.
And the said petition shall be verified by the affidavit of
the claimant, his agent, or attorney.1
376. The said allegations as to true allegiance and vol-
untary aiding, abetting, or giving encouragement to rebel-
lion against the Government may be traversed by the
Government, and if on the trial such issues shall be^f-12'1
decided against the claimant, his petition shall be dis-
missed.
1U. S. v. Insurance Companies, 22 Wall., 99.
148 MILITARY LAWS OF THE UNITED STATES.
^77. Whenever it is material in any claim to ascertain
tojuneU25 1868 whether any person did or did not give any aid or comfort
c/7i,s.3, v. 15, p. t0 the late rebellion, the claimant asserting the loyalty of
Sec. 1074, K.S. anv Sucj1 persOn to the United States during such rebellion
shall be required to prove affirmatively that such person
did, during said rebellion, consistently adhere to the United
States, and did give no aid or comfort to persons engaged
in said rebellion ; and the voluntary residence of any such
person in any place where, at any time during such resi-
dence, the rebel force or organization held sway, shall be
prima facie evidence that such person did give aid and
comfort to said rebellion and to the persons engaged therein.
commissioners 378. The Court of Claims shall have power to appoint
to take testi-
mony. commissioners to take testimony to be used in the investi-
Feb. 24,1855,c. . J
122, s. 3, v. 10, p. gation of claims which come before it: to prescribe the fees
613; Mar. 3, 1863, & . . .F
c. 92, s. 4, v. 12, p. which they snail receive tor their services, and to issue
Sec. 1075, B. s. commissions for the taking of such testimony, whether
taken at the instance of the claimant or of the United
States.
Power to caii 379. The said court shall have power to call upon any of
upon Depart- . * , * J
ments for infor- the Departments lor any information or papers it may deem
Feb. 24, 1855, c. necessary, and shall have the use of all recorded and printed
614! reports made by the committees of each House of Congress,
Sc<*. 1076} !*• &• *^
when deemed necessary in the prosecution of its business.
But the head of any Department may refuse and omit to
comply with any call for information or papers when, in his
opinion, such compliance would be injurious to the public
interest.
toTSilIta1?ennt 380> Wnen it} appears to the court in any case that the
WFeb* 24 1855 c facts se^ f or^h in the petition of the claimant do not furnish
122, s. 4, v. io,'p. anv ground for relief, it shall not be the duty of the court
Sec. 1077, R. s. to authorize the taking of any testimony therein.
excluded8 eosn ac- 381> No witness shall b^ excluded in any suit in the Court
count of color. of Claims on account of color.1
July 2, 1864, c. 210, s. 3, v. 13, p. 351; Mar. 2, 1867, c. 166, s. 2,
v. 14, p. 457; June 25, 1868, c. 71, s. 4, v. 15, p. 75. Sec. 1078, R. S.
382< Tne court mav? at tne instance of the attorney or
92Msars 3)v18i28' p" solicitor appearing in behalf of the United States, make an
any case pending therein, directing any claimant
15sec'.7io8o, R. s. *n sucn case *° aPPeaiS upon reasonable notice, before any
commissioner of the court, and be examined on oath touch-
ing any or all matters pertaining to said claim. Such
examination shall be reduced to writing by the said com-
missioner, and be returned to and filed in the court, and
Section 1079, Revised Statutes, repealed by section 8, act of March 3, 1887 (24
Stat. L., 505). See, also, Cornett v. Williams, 20 Wall., 226; Wood's Case, 10 Ct. Cls.,
395.
MILITARY LAWS OF THE UNITED STATES. 149
may, at the discretion of the attorney or solicitor of the
United States appearing in the case, be read and used as
evidence on the trial thereof. And if any claimant, after
such order is made and due and reasonable notice thereof
is given to him, fails to appear, or refuses to testify or
answer fully as to all matters within his knowledge material
to the issue, the court may, in its discretion, order that the
said cause shall not be brought forward for trial until he
shall have fully complied with the order of the court in the
premises.2
383. The testimony in cases pending before the Court of t^6/^1^0^
Claims shall be taken in the county where the witness re- deponent re-
sides, when the same can be convenientlv done. . Feb. 24, 1355, c.
122, s. 3, v.lO.p. 613.
GPP iom R ^
384. The Court of Claims may issue subpoenas to require witnesses, how
., , * •> • ^ i '-i-if. compelled to at-
tne attendance or witnesses in order to be examined before tend before com-
anv person commissioned to take testimonv therein, and Feb. 24, isss.c.
1_ ^ U 11 U ^ £ •£ • J£ 122,8. 3, V. 10, p.
such subpoenas shall have the same force as if issued from eis.
^U**» 1 flft^ R W
a district court, and compliance therewith shall be com-
pelled under such rules and orders as the court shall
establish.
385. In taking testimony to be used in support of any .Cross-examma-
claim, opportunity shall be given to the United States to Feb. 24, 1355, c.
. . .122,8. 5, v. 10, p.
me interrogatories, or by attorney to examine witnesses, ei|. ^^
under such regulations as said court shall prescribe; and
like opportunity shall be afforded the claimant, in cases
where testimony is taken on behalf of the United States,
under like regulations.
386. The commissioner taking testimony to be used in the witnesses, how
sw'
Court of Claims shall administer an oath or affirmation toFeb,M 1855 c
the witnesses brought before him for examination. 122 s 3 v. 10, p. eis.
' Seo 1084 R S
387. When testimony is taken for the claimant, the fees Fee's Of 'com-
of the commissioner before whom it is taken, and the cost whompSd.1"' by
of the commission and notice, shall be paid by such claim- i^'JJV i?'p.
ant; and when it is taken at the instance of the Govern-61|ec.1085,B.s.
ment, such fees, together with all postage incurred by the
Assistant Attorney-General, shall be paid out of the con-
tingent fund provided for the Court of Claims or other
appropriation made by Congress for that purpose.
388. Any person who corruptly practices or attempts to edCfof?raudrfei
practice any fraud against the United States in the proof, 92Msarii3'v^l; £
statement, establishment, or allowance of any claim, or of 76S7«;C. 1086, B. s.
any part of any claim against the United States, shall ipso
facto forfeit the same to the Government; and it shall be
the duty of the Court of Claims, in such cases, to find
2Macauley's Case, 11 Ct. Cls., 575.
150 MILITARY LAWS OF THE UNITED STATES.
specifically that such fraud was practiced or attempted to
be practiced, and thereupon to give judgment that such
claim is forfeited to the Government, and that the claimant
be forever barred from prosecuting the same.
motion of ^laim* ^®* When judgment is rendered against any claimant,
anFeb 24 1855 c ^e cour^ mav grant a new trial for any reason which, by
122, s. 9, v. 10, p. the rules of common law or chancery in suits between
Sec. IDS?, R.S. individuals, would furnish sufficient ground for granting
a new trial.
motion onjnited 390t The Court of Claims, at any time while any claim is
Stjune25 1868 c pending before it, or on appeal from it, or within two years
71, s. 2, v. is, p. next after the final disposition of such claim, may, on
Sec. loss, u. s. motiOn on behalf of the United States, grant a new trial
and stay the payment of any judgment therein, upon such
evidence, cumulative or otherwise, as shall satisfy the
court that any fraud, wrong, or injustice in the premises
has been done to the United States; but until an order is
made staying the payment of a judgment, the same shall
be payable and paid as now provided by law.1
jud|£Siten i °f 391< ^n a^ cases °^ final judgments by the Court of Claims,
TSj£ 8,^1888, c. or^ on appeal, by the Supreme Court, where the same are
76|"ec 1089 K s affirmed in favor of the claimant, the sum due thereby shall
be paid out of any general appropriation made by law for
the payment and satisfaction of private claims, on presen-
tation to the Secretary of the Treasury of a copy of said
judgment, certified by the clerk of the Court of Claims,
and signed by the chief justice, or, in his absence, by the
presiding judge of said court.
interest. 392. In cases where the judgment appealed from is in
92^ s. 7, v. 12,' p. favor of the claimant, and the same is affirmed by the
s'ec. 1090, R.S. Supreme Court, interest thereon at the rate of five per
centum shall be allowed from the date of its presentation
to the Secretary of the Treasury for payment as aforesaid,
but no interest shall be allowed subsequent to the affirm-
ance, unless presented for payment to the Secretary of the
Treasury as aforesaid.
interest on 393. No interest shall be allowed .on any claim up to the
Mar.'s, 1863, c. time of the rendition of judgment thereon by the Court of
92s7vl2p Jo «/
766. ' Claims, unless upon a contract expressly stipulating for
Scc«10yl9 ft»S* , /» •
the payment of interest.
Payment of 394. The payment of the amount due by any judgment
judgment a full ^ J . . 111
discharge, etc. or the Court of Claims and of any interest thereon allowed
92, s. 7, V. 12,' p. by law, as hereinbefore provided, shall be a full discharge
s'ec. 1092, B.S. to the United States of all claim and demand touching any
of the matters involved in the controversy.
1 Ex parte Russell, 13 Wall, 664; Ex parte, in matter of U. S., 16 Wall., 699.
MILITARY LAWS OF THE UNITED STATES. 151
395. Any final judgment against the claimant on any Final judg-
claim prosecuted as provided in this chapter shall forever mMar.\bi863, c.
bar any further claim or demand against the United States ?66.8' ' >-
arising out of the matters involved in the controversy.
THE BOWMAN ACT.
396. Whenever a claim or matter is pending before any
committee of the Senate or House of Representatives, or g>
before either House of Congress, which involves the inves-
tigation and determination of facts, the committee or House
may cause the same, with the vouchers, papers, proofs, and
documents pertaining thereto, to be transmitted to the
Court of Claims of the United States, and the same shall
there be proceeded in under such rules as the court may
adopt. When the facts shall have been found, the court
shall not enter judgment thereon, but shall report the same
to the committee or to the House by which the case was
transmitted for its consideration. Sec. 1, act of March 3,
1883(22 Stat. I,., 485).
397. That when a claim or matter is pending in any of
the Executive Departments which may involve ooht^JJJj^**1£**JJ
verted questions of fact or law, the head of such Depart-
ment may transmit the same, with the vouchers, papers,
proofs, and documents pertaining thereto, to said court,
and the same shall be there preceded in under such rules
as the court may adopt. When the facts and conclusions
of law shall have been found, the court shall not enter
judgment thereon, but shall report its findings and opin-
ions to the Department by which it was transmitted for its
guidance and action.1 Sec. 2, ibid.
398. The jurisdiction of said court shall not extend to or
include any claim against the United States growing
of the destruction or damage to property by the Army or
Navy during the war for the suppression of the rebellion,
or for the use and occupation of real estate by any part of
the military or naval forces of the United States in the
operations of said forces during the said war at the seat of
war; nor shall the said court have jurisdiction of any Ctaim
against the United States which is now barred by virtue
of the provisions of any law of the United States. Sec. 3,
ibid.
1 Where claims are referred by the head of an Executive Department, of his own
motion, and without the consent of the claimant, the court will take jurisdiction
under the Bowman Act. Billings v. U. S., 23 Ct. Cls., 166, 175.
152 MILITARY LA.W8 OF THE UNITED STATES.
399> In any case of a claim ^or suPPlies or stores taken
Jresslonf°of TiJe ^J or furnished to any part of military or naval forces of
^ne United States for their use during the late war for the
suppression of the rebellion, the petition shall aver that
the person who furnished such supplies or stores, or from
whom such supplies or stores were taken, did not give any
aid or comfort to said rebellion, but was throughout that
war loyal to the Government of the United States, and the
a isctiona ^act °f sucn loyalty shall be a jurisdictional fact; and un-
fact. iegs foe said court shall, on a preliminary inquiry, find that
the person who furnished such supplies or stores, or from
whom the same were taken as aforesaid, was loyal to the
Government of the United States throughout said war, the
court shall not have jurisdiction of such cause, and the same
shall, without further proceedings, be dismissed. Sec. 4>
ibid.
fo?ethesebni& 40°. Tnat the Attorney-General, or his assistants under
StsecS'5 ibid ^is direction, shall appear for the defense and protection
of the interests of the United States in all cases which
may be transmitted to the Court of Claims under this act,
with the same power to interpose counterclaims, offsets,
defenses for fraud practiced or attempted to be practiced
by claimants, and other defenses, in like manner as he is
now required to defend the United States in said court.
Sec. 5, ibid.
Parties in in- 4Q1. That in the trial of such cases no person shall be
terest may tes-
excluded as a witness because he or she is a party to or
interested in the same. Sec. 6, ibid.
co*r\Vfrci8aims 402' Tnat reports of the Court of Claims to Congress
uSf etc <fb?tac- under this act, if not finally acted upon during the session
U sec ? ibid ^ which they are reported, shall be continued from session
to session and from Congress to Congress until the same
shall be finally acted upon.1 Sec. 7, ibid.
THE TUCKER ACT.
thlGovernSe^t! 403' That the Court of Claims shall have jurisdiction to
hear and determine the following matters:
jurisdiction of First. All claims founded upon the Constitution of the
Court of Claims.
R. s., see. 1058, United States2 or any law of Congress, except for pensions,
Paragraphs 332 to 338, inclusive, constitute the Bowman Act (22 Stat. L., 485).
2 The clause giving the Court of Claims jurisdiction of claims founded upon the
Constitution of the United States gives the court jurisdiction over obligations arising
out of the occupation or taking of real property. Stovall r. U. S., 26 Ct. Cls.,226.
A distinction exists between property used for Government purposes and property
destroyed for the public safety. If the conditions admitted of it being acquired by
contract and used for the benefit of the Government, it may be regarded as acquired
MILITARY LAWS OF THE UNITED STATES. 153
or upon any regulation of an Executive Department, or <MMar^ 1887« v-
upon any contract, expressed or implied, with the Govern-
ment of the United States, or for damages, liquidated or
unliquidated, in cases not sounding in tort, in respect of
which claims the party would be entitled to redress against
the United States either in a court of law, equity, or admi-
ralty if the United States were suable: Provided, however, Pr°™«°.
That nothing in this section shall be construed as giving
to either of the courts herein mentioned jurisdiction to
hear and determine claims growing out of the late civil
war. and commonly known as "war claims," or to hear. "War"andre-
J jected claims ex-
and determine other claims which have heretofore beencePted-
rejected or reported on adversely by any court, Depart-
ment, or commission authorized to hear and determine the
same.
Second. All set-offs, counterclaims, claims for damages, ter_chSms et£n"
whether liquidated or unliquidated, or other demands
whatsoever on the part of the Government of the United £imStion
States against any claimant against the Government in said
court: Provided, That no suit against the Government of
the United States shall be allowed under this act unless the
same shall have been brought within six years after the right
accrued for which the claim is made. Act of March 3,
1887, vol. ^hp. 505. Provided further, That no suit against
the Government of the United States, brought by any I'
officer of the United States to recover fees for services P- ^
alleged to have been performed for the United States, shall
be allowed under this act unless an account for said fees
shall have been rendered and finally acted upon according
to the provisions of the act of July 31, 1894, * unless the
proper accounting officer of the Treasury fails to finally
act thereon within six months after the account is received
in said office. Act of June 27, 1898 (30 Stat. L., Ifilfi;
sec. 3, act of July 1, 1898 (30 ibid., 649).
404. That the district courts of the United States shall
have concurrent jurisdiction with the Court of Claims as
to all matters named in the preceding section where the gjjj of claims>'
amount of the claim does not exceed one thousand dollars, Sec- 2i md-
and the circuit courts of the United States shall have such
concurrent jurisdiction in all cases where the amount of
under an implied contract; but if the taking, using, or occupying was in the nature
of destruction for the general welfare, or incident to the ravages of war, and whether
brought about by casualty or by authority, and whether on hostile or national terri-
tory, the loss (in absence of positive legislation) must be borne by him upon whom
it falls. Hafleblower v. U. S., 21 Ct. Cls., 228.
1 28 Stat. L., 162.
154
MILITARY LAWS OF THE UNITED STATES.
Petitions for
release from offi-
cial bond.
Sec. 3, ibid.
such claim exceeds one thousand dollars and does not exceed
ten thousand dollars. All causes brought and tried under
the provisions of this act shall be tried by the court with-
jime?7?i&8,s. out a jury. Sec. 2, ibid. The jurisdiction hereby con-
2, v. so, p. 494. ferre(j UpOn the said circuit and district courts shall not
extend to cases brought to recover fees, salary, or compen-
sation for official services of officers of the United States
or brought for such purpose by persons claiming as such
officers or as assignees or legal representatives thereof.
Sec. 2, act of June 27, 1898 (30 Stat. Z., 494).
405. That whenever any person shall present his peti-
tion to the Court of Claims alleging that he is or has been
indebted to the United States as an officer or agent thereof,
or by virtue of any contract therewith, or that he is the
guarantor, or surety, or personal representative of any
officer, or agent, or contractor so indebted, or that he, or
the person for whom he is such surety, guarantor, or per-
sonal representative has held any office or agency under
the United States, or entered into any contract therewith,
under which it may be or has been claimed that an indebt-
edness to the United States has arisen and exists, and that
he or the person he represents has applied to the proper
Department of the Government requesting that the account
of such office, agency, or indebtedness may be adjusted
and settled, and that three years have elapsed from the
date of such application and said account still remains
unsettled and unadjusted, and that no suit upon the same
has been brought by the United States, said court shall,
due notice first being given to the head of said Depart-
ment and to the Attorney-General of the United States,
proceed to hear the parties and to ascertain the amount,
if any, due the United States on said account. The Attor-
ney-General shall represent the United States at the hear-
ing of said cause. The court may postpone the same from
time to time whenever justice shall require. The judgment
of said court or of the Supreme Court of the United States,
to which an appeal shall lie, as in other cases, as to the
amount due, shall be binding and conclusive upon the par-
ties. The payment of such amount so found due by the
court shall discharge such obligation. An action shall
accrue to the United States against such principal, or
surety, or representative to recover the amount so found
due, which may be brought at any time within three years
after the final judgment of said court. Unless suit shall be
brought within said time, such claim and the claim on the
Judgment.
Limitation.
MILITARY LAWS OF THE UNITED STATES.
155
original
ibid.
indebtedness shall be forever barred.
Petition
settlement
ibid.
Service.
Sec. 6, ibid.
Sec. 3,
Jurisdiction
and procedure.
406. That the jurisdiction of the respective courts of the Sec
United States proceeding under this act, including the right
of exception and appeal, shall be governed by the law now
in force, in so far as the same is applicable and not incon-
sistent with the provisions of this act; and the course of
procedure shall be in accordance with the established rules
of said respective courts, and of such additions and modi-
fications thereof as said courts may adopt. Sec. h ibid.
407. That the plaintiff in any suit brought under
provisions of the second section of this act shall file a
petition, duly verified, with the clerk of the respective court
having jurisdiction of the case, and in the district where
the plaintiff resides. Such petition shall set forth the full
name and residence of the plaintiff, the nature of his claim,
and a succinct statement of the facts upon which the claim
is based, the mone}^ or any other thing claimed, or the
damages sought to be recovered and praying the court for
a judgment or decree upon the facts and law. Sec. 5, ibid.
408. That the plaintiff shall cause a copy of his petition
filed under the preceding section to be served upon the
district attorney of the United States in the district wherein
suit is brought, and shall mail a copy of the same, by reg-
istered letter, to the Attorney-General of the United States,
and shall, thereupon cause to be filed with the clerk of the
court wherein suit is instituted an affidavit of such service
and the mailing of such letter. " It shall be the duty of the
district attorney upon whom service of petition is made as
aforesaid to appear and defend the interests of the Gov-
ernment in the suit, and within sixty days after the service
of petition upon him, unless the time should be extended
by order of the court made in the case to file a plea, answer,
or demurrer on the part of the Government, and to file a
notice of any counterclaim, set-off, claim for damages, or
other demand or defense whatsoever of the Goverement
in the premises: Provided, That should the district attor-
ney neglect or refuse to file the plea, answer, demurrer, or swer
defense, as required, the plaintiff may proceed with the
case under such rules as the court may adopt in the prem-
ises; but the plaintiff shall not have judgment or decree
for his claim, or any part thereof, unless he shall establish
the same by proof satisfactory to the court. Sec. 6, ibid.
409. That it shall be the duty of the court to cause a
written opinion to be filed in the cause, setting forth the
specific findings by the court of the facts therein and the
Defense.
156
MILITARY LAWS OF THE UNITED STATES.
writpspofaerrorand
sec. 9, ibid,
procedure.
conclusions of the court upon all questions of law involved
in the case, and to render judgment thereon. If the suit
be in equity or admiralty, the court shall proceed with the
same according to the rules of such courts. Sec. 7, ibid.
interested par- 410. That in the trial of any suit brought under any of
y' the provisions of this act, no person shall be excluded as a
witness because he is a party to or interested in said suit;
and any plaintiff- or party in interest may be examined as
a witness on the part of the Government.
Section ten hundred and seventy-nine of the Revised
Statutes is hereby repealed. The provisions of section ten
hundred and eighty of the Revised Statutes shall apply to
cases under this act. Sec. 8, ibid.
411> ^nat ^e P^11^ ™ the United States, in any suit
brought under the provisions of this act shall have the
same rights of appeal or writ of error as are now reserved
in the statutes of the United States in that behalf made,
and upon the conditions and limitations therein contained.
The modes of procedure in claiming and perfecting an
appeal or writ of error shall conform in all respects, and as
near as may be, to the statutes and rules of court govern-
ing appeals and writs of error in like causes. Sec. 9, ibid.
412« Tnat wnen tne findings of f act and the law applica-
kle thereto have been filed in any case as provided in section
six °f this act, and the judgment or decree is adverse to
the Government, it shall be the duty of the district attor-
ney to transmit to the Attorney-General of the United
States certified copies of all the papers filed in the cause,
with a transcript of the testimony taken, the written find-
ings of the court, and his written opinion as to the same;
whereupon the Attorney-General shall determine and direct
whether an appeal or writ of error shall be taken or not;
and when so directed the district attorney shall cause an
appeal or writ of error to be perfected in accordance with
the terms of the statutes and rules of practice governing
the same: Provided, That no appeal or writ of error shall
.
be allowed after six months from the judgment or decree
in such suit. From the date of such final judgment or
decree interest shall be computed thereon, at the rate of
four per centum per annum, until the time when an appro-
priation is made for the payment of the judgment or decree.
Sec. 10, ibid.
413t Tnat tne Attorney-General shall report to Congress,
the beginning of each session of Congress, the suits
under this act in which a final judgment or decree has been
ibid.
Appeal.
Proviso.
Limitation.
interest.
grfsesp°rt to C°n"
sec. 11, ibid. anc[
MILITARY LAWS OF THE UNITED STATES. 157
rendered giving the date of each, and a statement of the
costs taxed in each case. Sec. 11, ibid.
414. That when any claim or matter may be pending in claims referred
any of the Executive Departments which involves contro- ysecepi2, SS?
verted questions of fact or law, the head of such Depart-
ment, with the consent of the claimant, may transmit the
same, with the vouchers, papers, proofs, and documents
pertaining thereto, to said Court of Claims, and the same
shall be there proceeded in under such rules as the court
may adopt. When the facts and conclusions of law shall
have been found, the court shall report its findings to the
Department by which it was transmitted.1 Sec. 1%, ibid.
415. That in every case which shall come before the ciaimsreferred
^ f under Bowman
Court of Claims, or is now pending therein, under the A|^c 13 iMd
provisions of an act entitled "An act to afford assistance
and relief to Congress and the Executive Departments in
the investigation of claims and demands against the Gov-
ernment,'1 approved March third, eighteen hundred and
eighty-three, if it shall appear to the satisfaction of the
court, upon the facts established, that it has jurisdiction „
to render judgment or decree thereon under existing laws Judgment.
or under the provisions of this act, it shall proceed to do
so, giving to either party such further opportunity for
hearing as in its judgment- justice shall require, and report
its proceedings therein to either House of Congress or to
the Department by which the same was referred to said
court. Sec. 13, ibid.
416. That whenever any bill, except for a pension, shall
be pending in either House of Congress providing for
payment of a claim against the United States, legal or
equitable, or for a grant, gift, or bounty to any person,
the House in which such bill is pending may refer the
same to the Court of Claims, who shall proceed with the
same in accordance with the provisions of the act approved
March third, eighteen hundred and eighty-three, entitled
An "act to afford assistance and relief to Congress and the
Executive Departments in the investigation of claims and
demands against the Government," and report to such
House the facts in the case and the amount, where the
same can be liquidated, including any facts bearing upon
the question whether there has been delay or laches in
presenting such claim or applying for such grant, gift,
or bounty, and any facts bearing upon the question
whether the bar of any statute of limitation should be re-
1See paragraph 333 supra (section 3, act of March 3, 1883).
158 MILITARY LAWS OF THE UNITED STATES.
moved or which shall be claimed to excuse the claimant
for not having resorted to any established legal remedy.
Sec. 14, ibid.
ibid 417' If ttie Government of the United States shall put
in issue the right of the plaintiff to recover the court may,
in its discretion, allow costs to the prevailing party from
the time of joining such issue. Such costs, however, shall
include only what is actually incurred for witnesses, and
for summoning the same, and fees paid to the clerk of the
court.2 Sec. 15, ibid.
2 Vol. 24, Stat. L., pp. 506-508, paragraphs 339 to 353, supra, constitute the Tucker
Act. The act of March 3, 1891 (20 Stat. L., 851), confers jurisdiction upon this court
to adjust certain, claims arising from Indian depredations.
CHAJPTER -VIII.
THE DEPARTMENT OF THE NAVY— THE MARINE CORPS.
THE NAVY DEPARTMENT.
Par.
Par.
449. Prohibition of punishments on
sels of war.
450. Administration of oaths.
418. The Navy Department.
419-446. The Marine Corps.
447. Transfers to the Navy.
448. Details of navy officers.
418. There shall be at the seat of government an Execu-
tive Department to be known as the Department of the
Navy, and a Secretary of the Navy, who shall be the head1
thereof.1 '
of the
sec.4i5, B.S.
THE MARINE CORPS.
Par.
419. Composition.
420. Rank of commandant.
421. Restriction on appointments.
422. Vacancies.
423. Age limit — Examination for
pointment.
424. Examinations for promotion.
425. Staff.
426. Staff vacancies.
427. Relative rank.
428. Brevets.
429. Pay and allowances.
430. No commutation of forage.
431. Retirement.
432. Credit for volunteer service.
ap-
Par.
433. Retiring boards, composition.
434. Enlisted men, strength.
435. The Marine Band.
436. Enlistments, to be for five years.
437. Oath of enlistment.
438. Exemption from arrest.
439. Rations at sea.
440. Rations on shore duty.
441. The same.
442. Organization of Marine Corps.
443. Shore duty of the Marine Corps.
444. Regulations.
445. Application of Articles of War.
446. Service on army courts-martial.
419. From and after the date of the approval of this
the active list of the line officers of the United States 19
Marine Corps shall consist of one brigadier-general com-
mandant, five colonels, five lieutenant colonels, ten majors,
sixty captains, sixt}7 first lieutenants and sixty
lieutenants. * * * Vacancies in all grades in the line
created by this section shall be filled as far as possible by
eonrmrl 30, 1876, V. 19, p.
&eCOna 71; Mar. 3,1899,8.
1 The office and functions of the Secretary of the Navy were included in those of
Secretary of War from August 7, 1789, the date of the establishment of the War
Department, until April 30, 1798, when the Department of the Navy was established.
Act of April 30, 1798 (1 Stat. L., 553).
160 MILITARY LAWS OF THE UNITED STATES.
promotion by seniority from the line officers on the active
list of said Corps: And provided further, That the com-
missions of officers now in the Marine Corps shall not be
vacated by this act.1 Section 18, act of March 3, 1899
(30 Stat. Z., 1008).
Rank of com- 420. The commandant of the Marine Corps shall have
Mar. 2/1867, c. the rank and pay of a brigadier-general. Vacancies in the
SIT- June b, 1874J grade of briofadier-pfeneral shall be filled by selection from
v. 18, p. 58; Mar. fe .& ,. „ . _ . %,
3, 1899, s. is, v. so, officers on the active list of the Marine Corps not below
p'sec. i60i, K.S. the grade of field officer.2 /Section 18, act of March 3,
1899 (30 Stat. L., 1008).
Restriction on 421. Upon the passage of this Act not more than forty-
appointments, v
2i1va3b3' \oo9 s' ^ve °* ^ne ^P^ns, fort}r-five first lieutenants and forty-
five second lieutenants herein provided for shall be
appointed; fifteen captains, fifteen first lieutenants and
fifteen second lieutenants to be appointed subsequently to
January first, nineteen hundred. Sec. 81, act of March 3,
1899 (30 Stat. L., 1009).
APPOINTMENTS AND PROMOTIONS.
8trictCionCies> re *22. That the vacancies existing in said Corps after the
QMar. 3, 1899, s. promotions and appointments herein provided for shall
be filled by the President from time to time, whenever
the actual needs of the naval service require it, first,
from the graduates of the Naval Academy in the manner
now provided by law; or second, from those who are
serving or who have served as second lieutenants in the
Marine Corps during the war with Spain; or, third, from
meritorious noncommissioned officers of the Marine Corps;
or, fourth, from civil life: Provided, That after said va-
cancies are once filled there shall be no further appoint-
ments from civil life. Sec. 19, act of March 3, 1899
(30 Stat. L., 1009).
Limit of age; 423. That no person except such officers or former
sec.w.ibid. graduates of the Naval Academy as have served in the war
with Spain, as hereinbefore provided for, shall be appointed
a commissioned officer in the Marine Corps who is under
xThe act of January 30, 1885 (23 Stat. L., 287), contained the requirement that
there should be no more appointments, except by way of promotion, in the Marine
Corps until the total number of officers therein should be reduced to seventy-five.
2 By the act of June 6, 1874 (18 Stat. L., 58), the rank of the commandant of the
Marine Corps was reduced from brigadier-general to colonel, upon the occurrence of
a vacancy in the office of brigadier-general commandant, then authorized by law.
A vacancy having occurred on November 1, 1876, a commandant was appointed with
the rank of colonel. By section 18 of the act of March 3, 1899 (30 Stat. L., 1008), the
rank of brigadier general commandant was restored. The act of June 6, 1874, had
contained the requirement that the commandant of the Marine Corps should be
selected and appointed from the officers of the Corps.
MILITARY LAWS OF THE UNITED STATES. 161
twenty or over thirty years of age; and that no person
shall be appointed a commissioned officer in said Corps
until he shall have passed such examination as may be
prescribed by the President of the United States, except
graduates of the Naval Acadenry, as above provided.
That the officers of the Marine Corps above the grade of
captain, except brigadier-general, shall, before being pro-
moted, be subject to such physical, mental and moral
examination as is now, or may hereafter be, prescribed by
law for other officers of the Marine Corps.1 Sec. 80, ibid.
EXAMINATIONS FOR PROMOTION.
424. Hereafter promotions to every grade of commis-
sioned officers in the Marine Corps below the grade of27'?-321
commandant shall be made in the same manner and under
the same conditions as now are or may hereafter be pre-
scribed, in pursuance of law, for commissioned officers of
the Army: Provided, That examining boards which may
be organized under the provisions of this act, to determine
the fitness of officers of the Marine Corps for promotion,
shall, in all cases, consist of not less than five officers, three
of whom shall, if practicable, be officers of the Marine
Corps, senior to the officer to be examined, and two of
whom shall be medical officers of the Navy: Provided
further, That when not practicable to detail officers of the
Marine Corps as members of such examining board, offi-
cers of the line of the Navy shall be so detailed. x Act of
July 28, 1892 (27 Stat. L., 321).
425. The staff of the Marine Corps shall consist of one
adjutant and inspector, one quartermaster and one pay-
master, each with the rank of colonel; one assistant adju-
tant and inspector, two assistant quartermasters and one
assistant paymaster, each with the rank of major; and three
assistant quartermasters with the rank of captain. That
the vacancies created by this act in the departments of the
adjutant and inspector and paymaster shall be filled first
by promotion according to seniority of the officers in each
of these departments respectively, and then by selection
from the line officers on the active list of the Marine Corps
not below the grade of captain, and who shall have seen
1Tor laws regulating the examination of commissioned officers of the Army for
promotion, see the title "Examinations for Promotion" in the chapters entitled
MISSIONED OFFICERS and THE STAFF DEPARTMENTS.
22924—08 11
162 MILITARY LAWS OF THE UNITED STATES.
not less than ten years' service in the Marine Corps. That
the vacancies created by this act in the quartermaster's
department of said corps shall be filled, first by promotion
according" to seniority of the officers in this department,
and then by selection from the line officers on the active
list of said corps not below the grade of first lieutenant.
Sec. 28, Hid.
426. All vacancies hereafter occurring in the staff of the
Marine Corps shall be filled first by promotion according
to seniority of the officers in their respective departments,
and then by selection from officers of the line on the active
list, as hereinbefore provided for. Ibid.
RANK, BREVETS.
^' ^ne °fficers °f the Marine Corps shall be, in relation
i32Use4°'v844'p' t° rank, on the same footing as officers of similar grades in
7iec.i603,ii.s. th^ Army.
Brevets. 428. Commissions by brevet may be conferred upon corn-
Apr. 16, 1813, c. missioned officers of the Marine Corps in the same cases,
Oo, S. O, \ . O, p. J-— 1»
64Ps 21\' 31818427- llPon ^ne same conditions, and in the same manner as are
i32nes'39 v83^' p' or may ^e Pr°vided by law for officers of the Army.1
713; July 6,' 1812,' c. 137, s. 4, v. 2, p. 785; Mar. 1, 1869, c. 52, s. 2, v. 15, p. 281; Mar. 3,
1869, c. 124, s. 7, v. 15, p. 5*18; July 15, 1870, c. 294, s. 16, v. 16, p. 319. Sec. 1604, K.S.
PAY, RETIREMENT, ETC.
c<SJ °f Marinc 429' Tne officers of the Marine Corps shall be entitled
132^5 ^418p7i3:t° receive the same pay and allowances, and the enlisted
268gs 5i v8io P' men snaH be entitled to receive the same pay and bounty
for re-enlisting, as are or may be provided by or in pursu-
sec. 1612, K.S. ance of ]aw for £ne ofj|cers anc[ enlisted men of like grades
in the infantry of the Army.2
u^VfoSSS11*" 430. No commutation for forage shall be paid. Act of
23^28?.' 1885)V' 'January 30, 1885 (23 Stat. L., 287).
Retirement of 431. The commissioned officers of the Marine Corps shall
Aug 3 isei c ^e retired in like cases, in the same manner, and Avith the
12' Sp 1528^' Vuiy same relative conditions, in all respects, as are provided for
12' ly&2i2C 'p2°596: °fficers of the Army, except as is otherwise provided in the
Ja'n.21,1870', c. 9^ nPvf uppfinn
s. i, v. 16, p. 62; next section.
July 15, 1870, e. 294, s. 4, \. 16, p. 317; June 10, 1872, c. 419, s. 1. v. 17, p. 378. Sec. 1622, 11. S.
1 In addition to the recognition of meritorious services by means of brevets, section
1605, Revised Statutes, authorizes the President, with the consent of the Senate, to
advance any officer of the Marine Corps not exceeding thirty numbers in rank ' ' for
eminent and conspicuous conduct in battle or extraordinary heroism. ' ' Section 1607,
Kevised Statutes, authorizes the President, with the consent of the Senate, to advance
any marine officer one grade "if, upon the recommendation of the President, by
name, he receives the thanks of Congress for highly distinguished conduct in conflict
with the enemy, or for extraordinary heroism in the line of his profession." See
also sections 1606 and 1607, Revised Statutes, and the act of March 3, 1901 (31 Stat.
L., 1108).
2 For statutes regulating the pay and allowances of commissioned officers and
enlisted men, see the chapter entitled THE PAY DEPARTMENT.
MILITARY LAWS OF THE UNITED STATES.
163
432. All marine officers shall be credited with the length c/edit for vo1-
& unteer service.
of time they may have been employed as officers or enlisted 17f Y's^v1^!' °'
men in the volunteer service of the United States. 51|^c 1600 R s
433. In case of an officer of the Marine Corps, the retir- Retiring board'
r ^ composition.
ing board shall be selected by the Secretary of the Navy, 42A8U|i'7 V??' °'
under the direction of the President. Two-fifths of the28!-
»5rC» M»l»>, K.N.
board shall be selected from the Medical Corps of the Navy
and the remainder shall be selected from officers of the
Marine Corps, senior in rank, so far as may be, to the officer
whose disability is to be inquired of.1
ENLISTED MEN.
434. The enlisted force of the Marine Corps shall consist EnlHe(? men.
Sec. 23, ibid.
of five sergeant-majors, one drum major, twenty quarter-
master-sergeants, seventy-two gunnery sergeants with the
rank and allowance of the first sergeant, and whose pay
shall be thirty-five dollars per month; sixty first sergeants;
two hundred and forty sergeants; four hundred and eighty
corporals; eighty drummers; eighty trumpeters; and four
thousand nine hundred and sixty-two privates. Sec. *23,
435. The band of the United States Marine Corps shall g,*rij5e^Jd-
consist of one leader, with the pay and allowance of a first
lieutenant; one second leader, whose pay shall be seventy-
five dollars per month, and who shall have the allowances
of a sergeant major; thirty first-class musicians, whose pay
shall be sixty dollars per month; and thirt}^ second-class
musicians, whose pay shall be fifty dollars per month and
the allowance of a sergeant; such musicians of the band to
have no increased pay for length of service Sec. %h ibid-
436. Enlistments into the Marine Corps shall be for a
period not less than five years. Res- 106' v- 16' p- 387>
437. The officers and enlisted men of the Marine Corps
shall take the same oaths, respectively, which are provided 72^
by law for the officers and enlisted men of the Army.
438. Marines shall be exempt, while enlisted in said
service, from all personal arrest for debt or contract. July n 1798) (..
72, s. 5, v. 1, pp. 595, 596; June 30, 1834, c. 132, s. 3, v. 4, p. 713! Sec. 1610, R.S.
439. The non-commissioned officers, privates, and musi-
cians of the Marine Corps shall each be entitled to receive e.v.Vp- 524- July
one navy ration daily. 1J< 1798- "• 2< v- '• *• 595-
440. No law shall be construed to entitle enlisted men shortcut}-.8 '
on shore duty to any rations or commutation therefor other 30Mp^ 1898> v-
than such as are now, or may hereafter, be allowed to
1 For statutes regulating the functions' and procedure of retiring boards, see the
chapter entitled COMMISSIONED OFFICERS.
Sec-1608< B-s-
1798 c
164 MILITARY LAWS OF THE UNITED STATES.
enlisted men of the Army. Act of May 4, 1898 (30 Stat.
Z., 387).
MarTiwi v ^1- When it is impracticable or the expense is found
31, P. use. greater to supply marines serving on shore duty in the
island possessions and on foreign stations with the army
ration, such marines may be allowed the navy ration or
commutation therefor. Act of March 3, 1901 (31 Stat. L. ,
1130).
ORGANIZATION.
detachment?™1 442. The Marine Corps may be formed into as many com-
72?£1?,v.Yp959f panies or detachments as the President may direct, with a
sec. leu, R. s. pr0per distribution of the commissioned and noncommis-
sioned officers and musicians to each company or detach-
ment.
DUTIES ON SHORE.
443 xhe Marine Corps shall be liable to do duty in the
nd garrisons of the United States, on the seacoast,
or any other duty on shore, as the President, at his discre-
tion, may direct.
444. The President is authorized to prescribe such inili-
132, s. s, v. 4, p. £ary reguiations for the discipline of the Marine Corps as
sec. 1620, R.S. ^ mav ^em expedient.
445- The Marine Corps shall, at all times, be subject to
saving tne ^aws an(* regulations established for the government of
Navy , except when detached for service with the Army
713- July ii, 1798; ^J order of the President; and when so detached they shall
59572' 8' 4> v' *' p' be subject to the rules and articles of war prescribed for the
Sec. 1621, B.S. government of the Army.
Articles of war. 44$. Officers of the Marine Corps detached for service
Service on army r ,
courts-martial.^ with the Army by order of the President may be associ-
*•*• ated with officers of the Regular Army on courts-martial
for the trial of offenders belonging to the Regular Army,
or to forces of the Marine Corps so detached; and in such
cases the orders of the senior officer of either corps who
may be present and duly authorized shall be obeyed.
Seventy -eighth article of
TRANSFERS.
m5itSytom[?5 447t ^n^ Person enlisted in the military service of the
sejSyei 1864 c United States may, on application to the Navy Depart-
201,8. i,'v. is,' P'. nient, approved by the President, be transferred to the
sec.i42i,B.s. Navy or Marine Corps, to serve therein the residue of his
term of enlistment, subject to the laws and regulations
for the government of the Navy. But such transfer shall
MILITARY LAWS OF THE UNITED STATES. 165
not release him from any indebtedness to the Govern-
ment, nor, without the consent of the President, from
any penalty incurred for a breach of the military law.
DETAILS OF NAVAL OFFICERS.
448. The President may detail, temporarily, three com-
petent naval officers for the service of the War Depart- tailed for service
of the War De-
ment in the inspection of transport vessels, and for such P*^™6^
other services as maybe designated by the Secretary of 21-v- *?ifc ^V
bcc. 14:{« ,K.S.
War.
PROHIBITION OF PUNISHMENTS ON VESSELS OF WAR.
449. No other punishment l shall be permitted on board
of vessels belonging to the Navy, except by sentence of
a general or summary court-martial. All punishments in-
flicted by the commander, or by his order, except repri-
mands, shall be fully entered in the ship's log. Article
%4i Rules for the Government of the Navy.
ADMINISTRATION OF OATHS.
450. Judges-advocate of naval general courts-martial gjj8^ 1901
and courts of inquiry, and all commanders in chief of WfCfi.!** -
naval squadrons, commandants of navy -yards and stations,
officers commanding vessels of the Navy, and recruiting
officers of the Navy, and the adjutant and inspector, assist-
ant adjutant and inspector, commanding officers, and re-
cruiting officers of the Marine Corps be, and the same are
hereby, authorized to administer oaths for the purposes
of the administration of naval j dstice and for other pur-
poses of naval administration.2 Act of March 3, 1901 (31
Stat. Z., 1086).
other punishments" above referred to are those authorized to be inflicted
by the twenty-fourth naval article of war.
2 The act of January 25, 1895, (28 Stat. L., 639), had contained a similar provision.
CHAPTER TX.
THE DEPARTMENT OF THE INTERIOR.
Par. I Par.
451. Establishment of Department of the
Interior.
452. Duties of Secretary.
453. Powers of Secretary.
451. There shall be at the seat of Government an Execu-
tive Department to be known as the Department of the
3% s' lf v' 9' p* Interior, and a Secretary of the Interior, who shall be the
W.i . i *>~ I? W ] "I J 1 <>
i3CC» TO4* .•&•&• riOO/i TriOT'O/AT
Duties of Sec- neaa Ine reOI.
reE;3li849, c. 452- The Secretary of the Interior is charged with the
108,^88. 3, SA 7^8, supervision of public business relating to the following
July8,1870,c.230; an>vio/»fa'
S 1 V 16 P jgg. OUMJC^liO .
ii;l:ln?i>cw] First- The census; when directed by law.
i76lys 2iVi£?'pp' Second. The public lands, including mines.1
92/166.' Third The Indians.2
Fourth. Pensions and bounty lands,
sec. 441, R. s. Fifth. Patents for inventions.3
Seventh. Education.
Eighth. Government Hospital for the Insane.4
Ninth. Columbia Asylum for the Deaf and Dumb.
sec- 453. The Secretary of the Interior shall hereafter exer-
Mar.' i, 1873, c. cise all the powers and perform all the duties in relation
7 v 17 D 484
s'eci 442,'R. s. to the Territories of the United States that were, prior to
March first, eighteen hundred and seventy -three, by law
or by custom exercised and performed by the Secretary of
State.
1 For statutes respecting the public lands see the chapter so entitled.
2 By section 6 of the act of March 3, 1849 (9 Stat. L., 395), the supervising and
appellate powers in respect to Indian affairs, formerly exercised by the Secretary of
War, were transferred to the Secretary of the Interior. For statutes respecting the
Indians see the chapter so entitled.
3 The distribution of public documents, vested in the Department of the Interior by
the act of February 5, 1859 (11 Stat. L., 379), and subsequent statutes, was, by sec-
tions 61-64 of the act of January 12, 1895 (28 Stat. L., 601), transferred to the
Superintendent of Documents, an'officer acting under the supervision of the Public
Printer.
4 For statutes regulating admission in, etc., to this establishment see the chapter
entitled THE GOVERNMENT ASYLUM FOR THE INSANE.
166
217
CHAPTER X.
THE REVISED STATUTES l— THE STATUTES AT LARGE—
THE ARMY REGULATIONS— THE ARMY REGISTER.
Par.
454-468. The Revised Statutes, edition of
1874.
469-473. The same, edition of 1878.
474-480. The supplements to the Revised
Par.
481-486. The Statutes at Large.
487-489. The Army Regulations.
490-494. The Army Register.
Statutes.
THE REVISED STATUTES.
Par.
454.
of
470.
471.
Commissioners to revise and consol-
idate the General Statutes of the
United States.
455. Duties of the commissioners.
456. Work to be submitted to Congress.
457. Revision to be completed as soon as
practicable.
458. Preparation of Revised Statutes for
printing. Headnotes. Marginal
references. References to judicial
decisions. Index.
459. Printed copies to be evidence.
460. Title of revision of statutes.
461 . Certificate to Revised Statutes.
462. Scope of Revised Statutes.
463. Repeal of acts embraced in revision.
464. Accrued rights reserved.
454. The President of the United States is hereby au-
thorized, by and with the advice and consent of the Senate,
to appoint three persons, learned in the law, as commis-
sioners, to revise, simplify, arrange, and consolidate all
statutes of the United States, general and permanent in
1 The Revised Statutes must be accepted as the law on the subjects which they
embrace as it existed on the 1st day of December, 1873, and were enacted to present
the entire body of the laws in a concise and compact form. When the language of
the Revised Statutes is plain and unambiguous, the grammatical structure simple
and accurate, and the meaning of the whole intelligible and obvious, a court is not
at liberty, by construction, to reproduce the law as it stood before the revision.
U. S. r. Bowen, 100 TT. S., 508. See also Wright v. U. S., 15 Ct. Cls., 80, 86; U. S.
v. No. Am, Com. Co., 74 Fed. Rep., 145.
167
Par.
465. Prosecutions and punishments.
466. Acts of limitation.
467. Arrangement and classification
sections.
468. Acts passed since December 1, 1873,
not affected.
469. Commissioner to prepare new edi-
tion of Revised Statutes.
Duty of commissioner. Amend-
ments. References. Revision of
indexes.
Additional matter to be included.
472. When to be completed. To be legal
evidence.
473. New edition of Revised Statutes to
be prinia facie evidence.
u n l
168 MILITARY LAWS OF THE UNITED STATES.
their nature, which shall be in force at the time such com-
missioners may make the final report of their doings.
Act of June 87, 1866 (H Stat. /,., 74).
Duties of the 455. In performing this duty the "commissioners shall
sec. 2, ibid. bring together all statutes and parts of statutes which,
from similarity of subject, ought to be brought together,
omitting redundant or obsolete enactments, and making
such alterations as may be necessary to reconcile the con-
tradictions, supply the omissions, and amend the imper-
fections of the original text; and they shall arrange the
same under titles, chapters, and sections, or other suitable
divisions and subdivisions, with headnotes briefly ex-
pressive of the matter contained in such divisions; also
with side notes, so drawn as to point to the contents of the
text, and with references to the original text from which
each section is compiled, and to the decisions of the Federal
courts, explaining or expounding the same, and also to
such decisions of the State courts as they may deem expe-
dient; and they shall provide by a temporary index, or
other expedient means, for an easy reference to every
portion of their report. Sec. 2, ibid.
worktobesub- 45gt That when the commissioners have completed the
mitted to Con-
grlss- o -K-^ revision and consolidation of the statutes, as atoresaid,
&6C* o, ibid,
shall cause a copy of the same, in print, to be sub-
mitted to Congress, that the statutes so revised and con-
solidated may be reenacted, if Congress shall so determine;
and at the same time they shall also suggest to Congress
such contradictions, omissions, and imperfections as may
appear in the original text, with the mode in which they
have reconciled, supplied, and amended the same; and
they may also designate such statutes or parts of statutes
as, in their judgment, ought to be repealed, with their rea-
sons for such repeal.1 Sec. 3, ibid.
1 The act of June 27, 1866 (14 Stat. L., 74) , was revived by the act of May 4, 1870,
(16 Stat. L., 96), which authorized the President to appoint three commissioners to
prosecute and complete the work prescribed by that statute. The work of revision
was to be completed within three years from the date of passage of the act (May 4,
1870). The act of March 3, 1873 (17 Stat. L., 579), authorized the appointment of a
joint committee of Congress to accept the draft of the revision of laws, so far as the
same was completed at the expiration of the time designated for that purpose (May 4,
1873) . The same statute authorized the existing joint committee to contract with
some suitable person or persons to prepare a revision of the statutes, already reported
by the commissioners, in the form of a bill to be presented at the opening of the
Forty-third Congress. The publication of the first edition of the Revised Statutes
was authorized by the act of June 20, 1874 (18 Stat. L., 113); pp. 401-403, post.
MILITARY LAWS OF THE UNITED STATES. 169
457. That the statutes so revised and consolidated shall Revision to be
, , -, , ^ completed as
be reported to Congress as soon as practicable, and the J£°ne
whole work closed without unnecessary delay. Sec. 5, ibid. Sec-
FIRST EDITION OF THE REVISED STATUTES.
458. That the Secretary of State is hereby charged with Preparation of
^ T . <. . , , . . , Revised Statutes
the duty of causing to be prepared for printing, pubhca- for printing, etc.
tion, and distribution the Revised Statutes of the United i874,v. is,
States enacted at this present session of Congress; that
he shall cause to be completed the headnotes of the several Headnotes.
titles and chapters and the marginal notes referring- to the Marginal refer-
. ences to original
statutes from which each section was compiled and repealed statutes.
by said revision; and references to the decisions of the. References to
judicial deci-
courts of the United States explaining or expounding thesions-
same, and such decisions of State courts as he may deem
expedient, with a full and complete index to the same. index.
459. And when the same shall be completed, the said Promulgation.
Secretary shall duty certify the same under the seal of the
United States, and when printed and promulgated as here-
inafter provided, the printed volumes shall be Wai evi- . ?rinte^ c°Pies
JT , . _ to be evidence.
dence of the laws and treaties therein contained, in all the
courts of the United States, and of the several States and
Territories. l Sec. %, act of June W, 1874 (IS Stat. L. , 113).
460. That the revision of the statutes of a general and
permanent nature, with the index thereto, shall be printed Sec- 3-
in one volume, and shall be entitled and labeled "Revised
Statutes of the United States;" and the revision of the
statutes relating to the District of Columbia; to post-
roads, and the public treaties in force on the first day of
December, one thousand eight hundred and seventy-three,
with a suitable index to each, shall be published in a
separate volume, and entitled and labeled " Revised Stat-
utes relating to District of Columbia and Post-Roads.
Public Treaties." Sec. 3, Hid.
461. That the certificate to the printed volume of the •
Revised Statutes of the United States required by section Dec. 28,i874,v.
18, p. 298.
1 The first edition of the Revised Statutes is a transcript of the original in the State
Department. It is prima facie evidence of the law, but the original is the only con-
clusive evidence of the exact text of the law. Wright vs. U. S., 15 Ct. Cls;, 80, 87.
The incorporation of a particular statutory provision into the Revised Statutes,
adopted in 1874, was a legislative declaration that the law on that subject was as
therein provided; and, in the absence of any obscurity in the meaning, the court can
not look to the preexisting statutes to see whether or not they were correctly incor-
porated. U. S. v. The North American Commercial Co., 74 Fed. Rep., 145; U. S. v.
Bowen, 100 U. S., 508. As to the effects of amendments to the Revised Statutes, see
IT. S. v. Jessup, 15 Fed. Rep., 790.
170 MILITARY LAWS OF THE UNITED STATES.
two of "An act providing for publication of the revised
statutes and laws of the United States," approved June
twentieth, eighteen hundred and seventy-four, shall be
made by the Secretary of State under the seal of the
Department of State, and so much of said section as pro-
vides that such certificate shall be under the seal of the
United States, is hereby repealed. Act of December 28,
1874(18 Stat. Z.,
SCOPE OF THE REVISED STATUTES AND REPEAL PROVISIONS.
ySedPstatutef * ^2. The foregoing seventy-three titles embrace the stat-
Sec. 6596, R.S. u^eg of ^he United States general and permanent in their
nature, in force on the first day of December, one thousand
eight hundred and seventy -three, as revised and consoli-
dated by commissioners appointed under an act of Con-
gress, and the same shall be designated and cited, as The
Revised Statutes of the United States.1
Repeal of acts 463. All acts of Congress passed prior to said first day
embraced in re- . *
vision. ot December, one thousand eight hundred and seventy -
Sec.5696,K.S. . . J
three, any portion of which is embraced in any section of
said revision, are hereby repealed, and the section appli-
cable thereto shall be in force in lieu thereof; all parts of
such acts not contained in such revision having been
repealed or superseded by subsequent acts, or not being
general and permanent in their nature: Provided, That the
incorporation into said revision of any general and perma-
nent provision, taken from an act making appropriations,
or from an act containing other provisions of a private,
local, or temporary character, shall not repeal, or in any
way affect any appropriation, or any provision of a private,
local, or temporary character, contained in any of said acts,
but the same shall remain in force; and all acts of Con-
gress passed prior to said last-named day, no part of which
are embraced in said revision, shall not be affected or
changed by its enactment.
Accrued rights 434. The repeal of the several acts embraced in said revi-
sec.6597,n.s. sion shall not affect any act done, or any right accruing
or accrued, or any suit or proceeding had or commenced in
any civil cause before the said repeal, but all rights and
liabilities under said acts shall continue, and may be
enforced in the same manner, as if said repeal had not been
1 The Revised Statutes are an act of Congress. The enactment was approved and
became the law on June 22, 1874. Wright v. U. S., 15 Ct. Cls., 80. In case of doubt,
ambiguity, or uncertainty the previous statutes may be referred to. Ibid. See also
Bowent'. U. S., 100 U. S., 508. U. S. v. Bowen, 100 F. S., 508; Bate Refrigerating
Co. r. Sulzberger, 157 U. S., 1.
MILITARY LAWS OF THE UNITED STATES. I7l
made; nor shall said repeal in any manner affect the right
to any office, or change the term or tenure thereof.
465. All offenses committed, and all penalties or forfeit-a ^J^Jj^oj8
ures incurred under any statute embraced in said revision mfj*%698 K g
prior to said repeal, may be prosecuted and punished in
the same manner and with the same effect as if said repeal
had not been made.
466. All acts of limitation, whether applicable to civil Acts of iimita-
. tion.
causes and proceedings, or to the prosecution of offenses, Sec- 5599,B.s.
or for the recovery of penalties or forfeitures, embraced
in said revision and covered by said repeal, shall not be
affected thereby, but all suits, proceedings, or prosecutions,
whether civil or criminal, for causes arising or acts done
or committed prior to said repeal, may be commenced and
prosecuted within the same time as if said repeal had not
been made.
467. The arrangement and classification of the several Arrangement
and classifica-
.sections of the revision have been made tor the purpose of tio_,n of s,6™1 on*
1 »6C. obOt), U.S.
a more convenient and orderly arrangement of the same,
and therefore no inference or presumption of a legislative
construction is to be drawn by reason of the title under
which any particular section is placed.
468. The enactment of the said revision is not to affect .Ac1* ,0
since Dec. 1,1873,
or repeal any act o.f Congress passed since the 1st day of n<pealfte18t^75 c
December, one thousand eight hundred and seventy-three, {£. \^,f- &%•
_ , Mar. o, lo7o,c. lot),
and all acts passed since that date are to have full effect s.9,v.i8,p. 401.
j t Sec. 5001, K.S.
as it passed after the enactment of this revision, and so
far as such acts vary from or conflict with any provision
contained in said revision, they are to have effect as sub-
sequent statutes, and as repealing any portion of the
revision inconsistent therewith.
SECOND EDITION OF THE REVISED STATUTES.
EDITION OF 1878.
469. That the President of the United States be, and he
is hereby, authorized to appoint, by and with the advice
and consent of the Senate, one person, learned in the law, 19^,a^|' 1877> v>
as a commissioner, for the purpose of preparing and pub-
lishing a new edition of the first volume of the Revised
Statutes of the United States.1 Act of March 2, 1877 (19
Stat. Z., 268).
lThe second edition of the Revised Statutes is only a new publication; a compila-
tion, containing the original law, with specific amendments incorporated therein
according to the judgment of the editor. Wright v. U. S., 15 Ct. Cls., 80. The
Revised Statutes did not affect statutes passed between December 1 , 1873, and June
22, 1874. See note 1 to paragraph 405, ante.
172 MILITARY LAWS OF THE UNITED STATES.
' That in performing this duty, said commissioner
sec. 2, *id. shall be required to incorporate into the text of the Revised
Statutes as published in the year anno Domini eighteen
hundred and seventy-five, under the act of June twentieth,
Amendments, eighteen hundred and seventy -four, all the amendments
which have been made in the revision so published since
the first day of December, eighteen hundred and seventy-
three, and all that shall be made up to the close of the
References, present session of Congress, with marginal references to
such amendatory acts, and to all the decisions of the sev-
eral courts of the United States (as far as the same may
have been published) which may have been made sub-
sequent to those already cited in the margin of the present
revision, and may include also citations to such judicial
decisions of the various State courts as he may deem
important; and he shall also make marginal references to
the various statutes passed by Congress since the first day
of December, eighteen hundred and seventy-three, not
expressly therein declared to be amendments to the Revised
Statutes, but which, in the opinion of said commissioner,
may in an}r manner affect or modify any of the provisions
of the said Revised Statutes, or anjr of the amendments
thereto, indicating in such marginal notes by a difference
in type the references to statutes of this kind, and he shall
dexelisi°n °f in rev^se ^e indexes and incorporate therein references to the
additions herein required. Sec. 2, ibid.
'matter to ^in- ^** That there shall also be included in said edition the
Clsecd3 md Articles of Confederation, the Declaration of our National
Independence, the Ordinance of seventeen hundred and
eighty-seven for the government of the Northwestern
Territory, the Constitution of the United States, with foot-
notes referring to decisions of the Federal courts thereon,
the "Act to provide for the revision and consolidation of
the statute laws of the United States," approved June
twenty-seventh, eighteen hundred and sixty-six, and the
' ' Act providing for publication of the Revised Statutes
and the laws of the United States," approved June twen-
tieth, eighteen hundred and seventy-four, as well as the
present act. Sec. 3, ibid.
when to be 472. That said new edition shall be completed in manu-
completed. . .
sec. 4, ibid. script by said commissioner by the first day of January,
anno Domini eighteen hundred and seventy-eight, and by
him presented to the Secretary of State for his examina-
tion and approval, who is hereby required to examine and
compare the same, as amended, with all the amendatory
20^27°.' 18?8> v' ac^s? and? within two months after having been submitted
MILITARY LAWS OF THE UNITED STATES. 173
to him, and when the same shall be completed, the said
Secretary shall duty certify the same under the seal of the
Secretary of State, and when printed and promulgated as
herein provided the printed volume shall be legal evidence denceelegalevi"
of the laws therein contained, in all the courts of the
United States, and of the several States and Territories,
but shall not preclude reference to nor control, in any case
of discrepancy, the effect of any original act as passed by
Congress since the first day of December, eighteen hun-
dred and seventy-three, and said Secretary shall cause
fifteen thousand copies of the same to be printed and
bound at the -Government Printing Office, under the
supervision of said commissioner, at the expense of the
United States, and without unnecessary delay.1 Sec. 4, 2oMar279f 1878' v'
ibid.
473. That an act entitled "An act to provide for the
preparation and publication of a new edition of the
Statutes of the United States," approved March second, 2oMar279' 1878' v'
eighteen hundred and seventy-seven, be, and the same is
hereby, amended as follows, to wit: By striking out from
1 Under the authority conferred by this statute the Hon. George S. Boutwell was
appointed a commissioner to prepare the new edition. The following extract from
the preface to the second edition of the Revised Statutes will explain its scope.
By an act of Congress approved March 2, 1877 (v. 19, c. 82, p. 268), authority was
given for the appointment by the President of a commissioner, whose duty it should
be to prepare and publish, subject to the examination and approval of the Secretary
of State, a new edition of the first volume of the Revised Statutes of the United
States.
The jurisdiction of the commissioner was defined and limited by the statute. He
was directed to incorporate into the text of the first edition of the statutes all the
amendments made since the first day of December, eighteen hundred and seventy-
three, including those made by the Forty-fourth Congress, with marginal references
to the acts of amendment and to the decisions of the several courts of the United
States, with like references to all the statutes passed in the same period, which, in
the opinion of the commissioner, might in any. many affect or. modify any of the
provisions of the first edition of the Revised Statutes.
He was also directed to include in the new edition the Articles of Confederation, the
.Declaration of our National Independence, the Ordinance of Seventeen hundred and
eighty-seven for the Government of the Northwestern Territory, and the Constitu-
tion of the United States, with footnotes referring to the decisions of the Federal
courts thereon. These papers were not printed with the first edition of the statutes.
This edition is not in any proper sense a new revision of the statutes of the United
States. The commissioner was not clothed with power to change the substance or to
alter the language of the existing edition of the Revised Statutes, nor could he cor-
rect any errors or supply any omissions therein except as authorized by the several
statutes of amendment. Of specific amendments there are, however, several hun-
dred, which have been incorporated with the text. The portions of the statutes
repealed are printed in italics and included in brackets, and the new matter intro-
duced is printed in the ordinary roman letter and also included in brackets.
So much of the work as affects the text of the present edition has been examined
under the direction of the Hon. William M. Evarts, Secretary of State, by Hon.
Charles P. James, one of the commissioners by whom the first edition of the Revised
Statutes was prepared.
The acts of Congress passed since the first edition of the Revised Statutes was
issued, and affecting the text thereof, are referred to in the margin of the respective
sections so affected. . .
In this edition full and, it is believed, complete notes of reference to the opinions
of the Supreme Court of the United States will be found under the several para-
174
MILITARY LAWS OF THE UNITED STATES.
the ninth and tenth lines of section four,1 as published in
the nineteenth volume of the Statutes at Large, the words
"and conclusive;" and, in the tenth line, the words "and
treaties;" and, by inserting after the word "Territories,"
at the end of the eleventh line, the following words, to wit:
"but shall not preclude reference to, nor control, in case
of any discrepancy, the effect of any original act as passed
by Congress since the first day of December, eighteen hun-
dred and seventy -three." Act of March ,9, 1878 (20 Stat.
Z., 07).
SUPPLEMENTS TO THE REVISED STATUTES.
Par.
474, 475. The supplement of 1881.
476, 477. The supplement of 1891 (Vol. I).
Par.
478. The supplement of 1895 (Vol. II).
479, 480. The supplement of 1899.
THE SUPPLEMENT OF 1881.
th!URepvfs?deistet° 474« That the supplement to the Revised Statutes, ein-
utfoint res NO bracing the statutes general and permanent in their nature
\\'2/,Up!6308.1880' Passe(l after the Revised Statutes with references connect-
ing provisions on the same subject, explanatory notes, cita-
tions of judicial decisions, and a general index, prepared
by William A. Richardson, be stereotyped at the Govern-
ment Printing Office; and the index and plates thereof
and all right and title therein and thereto shall be in and
fully belong to the Government for its exclusive use and
benefit. 2 Joint resolution No. 44, June 7, 1880 (21 Stat. L. ,
308}.
graphs of the Constitution to which the opinions respectively relate, and reference
is also made to the small number of decisions which interpret or in any manner
touch the Ordinance for the Government of the Northwestern Territory.
The appendix contains the varipus statutes which provide for or relate to the
"revision and consolidation of the statute laws of the United States," and also a
cross index by which the various provisions of the Revised Statutes may be traced
to the original enactments in the Statutes at Large.
In the preparation of the index I have had the best assistance which I could com-
mand, and no labor has been avoided that could contribute in the least to the per-
fectness of the work. While it is not probable that the end sought has been attained
I indulge the hope that the character of the index may, in some reasonable degree,
meet the expectation of Congress, the executive officers of the Government, the
judiciary, and the profession generally.
The analytical index to the Constitution was prepared by W. J. McDonald, esq.,
late Chief Clerk of the United States Senate.
The historical notes to the Declaration of Independence, the Articles of Confed-
eration, and the Constitution are taken from a work entitled ' ' The Organic Laws of
the United States of America," prepared by Maj. Ben: Perley Poore, and printed by
authority of Congress.
1 Paragraph 474, ante.
2 Under this resolution a supplement was published in 1881, entitled volume 1. It
was then supposed that other volumes would be authorized, from time to time, by
subsequent legislation. This proved not to be the ca^e, as the act of April 9, 1890
( paragraph 420, post], provided for the continuation of the publication, to be issued in
one volume and to embrace the general laws passed subsequent to the issue of the
Revised Statutes and including those of the Forty -seven th , Forty-eighth, Forty-ninth,
Fiftieth, and Fifty-first Congresses. See note 2 to paragraph 423, post.
MILITARY LAWS OF THE UNITED STATES.
175
50-
contents.
475. The publication herein authorized shall be taken to , T,° b?, Prim*
r facie evidence.
be prirna facie evidence of the laws therein contained, in all IUd-
the courts of the United States and of the several States
and Territories therein; but shall not preclude reference
to, nor control, in case of any discrepancy, the effect of
any original act as passed by Congress: Provided, That Proviso.
nothing herein contained shall be construed to change or
alter any existing law. Ibid.
THE SUPPLEMENT OF 1891, VOL. I.
476. That the publication of the Supplement to the Re-
vised Statutes, embracing the statutes general and perma-
nent in their nature, passed after the Revised Statutes, 26
with references connecting provisions on the same subject,
explanatory notes, and citations of judicial decisions, be
continued and issued in one volume, to include the general
laws of the Forty-seventh, Forty-eighth, Forty-ninth, Fif-
tieth, and Fifty-first Congresses, with a table of alterations
and a general index to the whole, to be prepared and edited
by the editor of the existing Supplement, authorized by the
joint resolution of June twenty -eighth, eighteen hundred
and eighty, numbered forty-four (Supplement to Revised
Statutes, page five hundred and eight}^-two), to be stereo-
typed at the Government Printing Office, using the present
plates, as far as practicable, with such alterations as may
be found necessary, the work and plates and all right and
title therein and thereto to be in and fully belong to the
Government for its exclusive use and benefit. Act of
April 9, 1890 (26 Stat. Z., 50).
* X- * * *
477. That the publication herein authorized shall be
taken to be prima facie evidence of the laws therein con-
tained, but shall not change nor alter any existing law, nor
preclude reference to jior control, in case of any discrep-
ancy, the effect of any original act passed by Congress.1
Sec. 3, ibid.
THE SUPPLEMENT OF 1895, VOL. II.
478. That the publication of the Supplement to ^
Revised Statutes of the United States shall be further 27F£b$;
continued under the editorial charge of the editor of the
1 The volume published in conformity to the authority herein conferred was pub-
lished in 1891, and is entitled "Vol. 1, Supplement to the Revised Statutes of the
United States. Second edition. 1874-1891," and supersedes the volume jwbhshed
under the authority ronferred by the joint resolution, No. 44, of June /, U
Stat. L., 308).
' v'
To enable Hie Secretary of die Treasury to J*T,
the work shall be competed, for preparing and edit-
Supplement to the KeTked Statutes of the United
Slates for the Ftftr ifth Coagress, under the adtof Feb-
hundred and ninetr-three
doOais. Ac*+fJ*/y 1,1398 (30 Slot. L.,
4M. Hereafterthe S«pp*emeiit of the Re vised Statote
dhdc^topriybiBiafttfbMaqpiiittn
in one volume, and an expenses of preparing and editing
the same shall not exceed one thousand dollars. Act of
SEATCTFS AT
4SL At the end of each
of
United
shall be stereo-
the
of tiie
of said uam~
7- -r. -L
~: - ---
-:- :-
Xf :•
:- ;
i
I
MTLJT AET I. AW5 Of THE tJinEl> 9XATJE5.
prorided for the priBtng9dfetribiition.
•et of April
The Scuetatj of Slate shall
be Bade afc UK dose of CTCTJ
::..:--
To the Preadent and Vke-Preaifc^ of the U
Stales, two
To tbe War Department, two hundred copies;
See. 7f,
483. TU ^"i i ii tii of I'tifr i iiilhiHJiMl In hut
needful for
not exceeding' one thousand copies of the laws of
^^ fl^gfc «*MKirM* in *mw niM~ vwvr Tl^J
484. After the doee of each Congress the Secretary of 5ST
State shall have edited,
of the
to enable kaa\ to
ies, or as many thereof as may be needed, as foDovs:
To the Prudent of the United States. &
one of wtndi sfaaU be f or the Hbnrr of the
of the United States to
178
MILITARY LAWS OF THE UNITED STATES.
the public expense, by authority of law, shall preserve
such copies, and deliver them to their successors respec-
tively as a part of the property appertaining to the office.
A printed copy of this section shall be inserted in each
volume of the Statutes distributed to any such officers.
ARMY REGULATIONS.
Par.
487.
President authorized to make and
publish regulations for the Army.
Par.
488. Secretary of War to cause all regu-
lations now in force to be codified
and published to the Army.
thSdetomaake 487> That so mucl1 of the act aPPr°ved July 15, 1870,1
SSftwns1!? rteheentitled Uj^n ac^ making appropriations for the support of
AMar i 1875 v ^ne Army for the year ending June 30, 1871, and for other
is, p. 337. purposes " as requires the system of General Regulations
for the Army therein authorized to be reported to Congress
at its next session, and approved by that body be, and the
same is hereby, repealed; and the President is hereby
authorized, under said section, to make and publish regu-
lations for the government of the Army in accordance with
existing laws.2 Act of March 1, 1875 (18 Stat. Z., 337.)
1 Section 37 of the act of July 28, 1866 (14 Stat. L., 337), contained the following
requirement: "The Secretary be and he is hereby directed to have prepared and to
report to Congress, at its next session, a code of regulations for the government of
the Army, and of the militia in actual service, which shall embrace all necessary
orders and forms of a general character for the performance of all duties incumbent
on officers and men in the military service, including rules for the government of
courts-martial, the existing regulations to remain in force until Congress shall have
acted on said report." No code of regulations was submitted to Congress in con-
formity to the terms of this statute, and it was subsequently held by the Attorney-
General of the United States, in an opinion rendered in the case of Contract-Surgeon
Bayne (XVII Opin. Att. Gen., 461), that the above section, if not repealed by the
general repealing clause of the Revised Statutes (section 5596), was superseded by
the act of March 1, 1875 (18 Stat. L., 337), (a) which in effect conferred authority to
modify existing Army Eegulations as well as to create new ones. It was also held
by the same officer that the code of regulations prepared in conformity to the author-
ity conferred by section 2 of the act of June 23, 1879, (6) which was approved and pub-
lished to the Army on February 17, 1881 (Army Regulations of 1881), superseded
the code of Army Regulations of 1863 (XVII Opin. Att. Gen., 461). See, also, U. S.
v. Eaton, 144 U. S., 617, 688; Caha v. U. S., 152 D. S., 212, 219; Morrison v. U. S.,
13 Ct. Cls., 1-6; Smith v. U. S., 23 ibid., 452; Low v. Harrison, 72 Maine, 104.
2 The codification of the "Regulations of the Army and General Orders," prepared
in conformity to section 2 of the Act of June 23, 1879 (21 Stat. L., 34), which was
approved and promulgated to the Army on February 17, 1881 (Army Regulations of
1881) , superseded the body of regulations similarly promulgated in 1863. XVII
Opin. Att. Gen., 461.
The Army Regulations derive their force from the power of the President as Com-
mander in Chief, and are binding upon all within the sphere of his legal and consti-
tutional authority. Kurtz v. Moffatt, 115 U. S., 487, 503; U. S. v. Eliason, 16 Pet, 291;
U. S. v. Freeman, 3 How., 556. The power of the Executive to establish rules and
regulations for the government of the Army is undoubted. The power to establish
implies, necessarily, the power to modify or repeal, or to create anew. The Secretary
of War is the regular, constitutional organ of the President for the administration of
the military establishment of the nation, and orders publicly promulgated through
« Paragraph, post.
b 21 Stat. L., 34.
MILITARY LAWS OF THE UNITED STATES. 179
489. That the Secretary of War is authorized andw^crettu:y of
directed to cause all the regulations of the Army now in [nlorcSbecST
force to be codified and published to the Armv, and to!^e£ a"d ?ub-
" ' lished to the
defray the expenses thereof out of the contingent fund Ars™J-2 June ^
of the Army . l Sec. 2, act of June 23, 1879 (21 Stat. L. , 34). 187^v- &. ™«- '
him must be received as the act of the Executive and, as such, be binding upon all
within the sphere of his legal or constitutional authority. Such regulations can not
be questioned or defied because they may be thought unwise or mistaken. U. S. v.
Eliason, 16 Pet, 291,302.
The term regulations of an Executive Department describes rules and regulations
relating to subjects on which a department acts, which are made by the head under
an act of Congress conferring that power, and thereby giving to such regulations 'he
force of law. A mere order of the President or of a Secretary is not a regulation.
Harvey v. U. S., 3 Ct. Cls., 38, 42; Dig. Opin. J. A. G., par. 494, and note 1; IV
Compt. Dec., 225. A "regulation" affects a class of officers; an "instruction" is a
direction to govern the conduct of the particular officer to whom it is addressed.
Landram v. U. S., 16 Ct. Cls. 74. The Army Regulations when sanctioned by the
President have the force of law, because it is done by him by the authority of law.
U. S. v. Freeman, 3 How., 556; Gratiot v. U. S., 4 How., 80; Ex parte Reed, 100 U. S.,
13; Smith v. U. S., 23 Ct. Cls., 452. When Congress permits regulations to be
formulated and published and carried into effect from year to year, the legislative
ratification must be implied. Maddox v. U. S., 20 Ct. Cls., 193, 198.
The authority of the head of an Executive Department to issue orders, regula-
tions, and instructions, with the approval of the President, is subject to the Condi-
tion, necessarily implied, that they must be consistent with the statutes which have
been enacted by Congress. U. S. v. Symonds, 120 U. S., 46, 49; U. S. v. Bishop,
idem., 51; Dig. Opin. J. A. G., par. 494, note 2; par. 6, p. 168. Regulations can
have no retroactive effect. (U. S. v. Davis, 132 U. S. , 334. ) Provision of statute exists
by which the statute regulations of the Army may, within certain limits, be altered
by the Secretary of War, but there is no such provision in regard to the statute
regulations of the Navy. VI Opin. Att. Gen., 10; 8 ibid., 337. The same discrepancy
exists in the military law of Great Britain. Ibid.
Regulations prescribed and framed by the Secretary of War and which are intended
for the direction and government of the officers of the Army and agents of the
Department do not bind the Commander in Chief nor the head of the War Depart-
ment. Burns v. U. S., 12 Wall., 246; Smith v. U. S., 24 Ct. Cls., 209, 215. But see
Arthur v. U. S., 16 Ct. Cls., 422, and U. S. v. Barrows, 1 Abb., 351.
Regulations which heads of Departments are expressly authorized to make, in
which the public is interested, become a part of that body of public records of which
fhe courts take judicial notice. Caha v. U. S., 152 U. S., 211.
The purpose of a regulation is to carry into effect the law; but where rights, duties,
and obligations are defined by statute they can not be taken away or abridged by
regulations. Laurey v. U. S., 32 Ct Cls., 259; U. S., v. Garlinger, 169 U. S., 316.
While regulations duly promulgated have the force of law in a limited sense, they
can not enlarge or restrict the liability of the officer on his bond. Meads v. U. S., 81
Fed. Rep., 684.
Amendment and waiver of regulations. — Regulations made by the head of a Depart-
ment may be amended or waived in their application to particular cases. Ill Compt.
Dec., 305; IV, ibid., 40; I, ibid., 326. There must be a specific waiver, however, and in
the absence of such specific waiver the regulation as it stands will be applied by the
accounting officers in the settlement of accounts. Ill, ibid., 304; IV, ibid., 40.
1 The Secretary of War is expressly authorized by other enactments of Congress to
prescribe regulations for the transportation, safe-keeping, and distribution of articles
of supply purchased by the Quartermaster's and Subsistence Departments (sec. 219,
R. S. ) ; for the preparation, submission, and opening of bids, act of April 10, 1878
(20 Stat. L., 36) ; for the deposit of refuse and debris from rivers that is calculated to
interfere with navigation, act of August 5, 1886 (24 Stat. L., 329); for the deposit of
refuse material beyond the harbor lines established in accordance with statutes, sec. 11,
act of September 11, 1890 (26 Stat. L., 455); for the use of the channel at the mouth
of the Mississippi River which has been improved by the United States, act of June
1, 1874 (18 Stat. L., 50); for the use and operation of canals and other works of river
and harbor improvement which have been purchased or constructed by the United
States, sec. 4, act of August 17, 1894 (28 Stat. L., 362); for the construction of bridges
across the navigable waters of the'United States; for the use of certain drawbridges,
180
MILITARY LAWS OF THE UNITED STATES.
THE ARMY REGISTER.
Par.
490. Army Register to be furnished an-
nually to the Senate.
491. The same to be furnished annually
to the House of Representatives.
Par.
492. Schedule of pay to appear.
493. Volunteer rank.
494. Lineal rank.
Army Register
to be furnished
490. That the Secretary of War and the Secretary of the
senately to the ^avy be requested to furnish annually, on the first of Jan-
i3Si8i5res' Dec' ualT5 ea°h member of the Senate with a copy of the Reg-
ister of the officers of the Army and Navy of the United
States. Senate resolution, December 13, 1815.
sec. 5 (ibid. ) ; to secure a proper administrative examination of accounts sent to him
hi accordance with the provisions of the act of July 31, 1894 (28 Stat. L., 211); to
carry out the provisions of the act of March 29, 1894 (28 Stat. L., 47), in relation to
property returns, etc.
Regulation,0 may be divided into different classes with respect to the question of
the power of the person making the regulation to authorize an exception to it.
There are, or may be, those which have received the sanction of Congress, and it is
evident that the Secretary of War would have no authority to make an exception to
one of these. There are also those that are made pursuant to and in aid of a statute.
These may be modified, but until this is done are binding as well on the authority
that made them as on others. U. S. v. Barrows, 1 Abbott, 351.
There is also a large body of other regulations emanating from and depending
solely on the authority of the President as Commander in Chief. With reference to
such regulations it has, I believe, been sometimes claimed that the same rule should
be applied to them that is applied to the regulations made pursuant to statute. But
this has not been done in practice, and I do not think that it should be done, for the
reason that it would seem to be an unnecessary, embarrassing, and perhaps uncon-
stitutional limitation of the authority of the President as Commander in Chief. Opin.
J. A. Gen.. March 5, 1896.
HISTORICAL NOTE.
The first volume of Army Regulations, using that term in the sense in which it is
now understood, was issued to the Army on May 1, 1813, under the authority con-
ferred by the act of March 3 of that year.
From March 29, 1779, until May 1, 1813, the "Regulations for the Order and Dis-
cipline of the Troops of the United States" were in force. They were prepared by
Major-General Baron Steuben, the Inspector-General of the Army during the latter
part of the war of the Revolution, and consisted in great part of matter which would
now be properly termed drill regulations. The work was first printed at Worcester,
Mass., in 1778, and was formally approved and adopted by Congress on March 29,
1779. The last edition of the Steuben regulations appeared in 1809, and it continued
in use as a drill book after it had ceased to have authority as a volume of army regu-
lations. In 1808 a small volume was published, apparently with the sanction of the
War Department, containing the Articles of War which had been enacted in 1806,
to which were added such military laws as were then in force.
Section 5 of the act of March 3, 1813 (2 Stat. L., 819), required the Secretary of
War to prepare general regulations which, "when approved by the President of the
United States, shall be respected and obeyed until altered or- revoked by the same
authority." The volume of regulations issued in pursuance of this authority was
entitled "Military laws and rules and regulations for the armies of the United
States," and was approved by the President on May 1, 1813. It contained the
Articles of War of 1806, together with the statutes relating to the military establish-
ment and a small number of regulations, properly so called. Editions of this work
were published in 1814 and 1815, the latter, however, without the authority of the
War Department.
The act of April 24, 1816 (3 Stat. L., 298), provided that the "regulations in force
before the reduction of the Army be recognized as far as the same shall be found
applicable to the service, subject, however, to such alterations as the Secretary of
War may adopt, with the approbation of the President." In accordance with this
MILITARY LAWS OF THE UNITED STATES.
491. That the Secretary of War cause to be annually laid
before this House a number of copies of the printed armyalf1ytotheHouse
, * * * of Kepresenta-
list, equal to the number of members of the House. House ^55^^
resolution, February 1, 1830. Feb- L »»•"
492. That there be annexed annually hereafter to the Schedule of
Army Register an accurate schedule of the pay and emolu- House rea.
Aui? 30 1842
ments, with the commutation value thereof, to which the
various officers of the Army of each grade are entitled
House resolution, August 30, 18J$.
493. The highest volunteer rank which has been held by volunteer
officers of the Regular Army shall be entered, with their Sec.' 1220, R. s.
names, respectively, upon the Army Register.
legislation a volume of regulations was issued in September, 1816, and in January,
1820, a new edition containing the orders of the War Department issued since Sep-
tember, 1816.
Section 14 of the act of March 2, 1821 (3 Stat. L., 616), contained a provision that
"the system of regulations prepared by Major-General Scott shall be, and the same
are hereby, approved and adopted for the government of the Army of the United
States and of the militia when in the service of the United States." These regula-
tions were approved by President Monroe and published to the Army in July, 1821.
On May 7, 1822, section 14 of the act of March 2, 1821, was formally repealed, thus
withdrawing the legislative sanction which had been conferred by the statute above
cited. As to this enactment Attorney-General Wirt advised that, " notwithstanding
such repeal, the regulations having received the sanction of the President, continued
in force by the authority of the President in all cases where they did not conflict
with positive legislation." 1 Opin. Att. Gen., 549. The Regulations of 1821 were
revised under the direction of General Scott and a new edition was issued on March 1,
1825, which continued in force until 1835.
A volume of General Regulations, compiled under the direction of Major-General
Macomb, was printed and prepared for issue on September 1, 1835, but was not
formally approved and promulgated until December 31, 1836. A second edition of
this work, with some modifications, was issued in 1841, and a third edition, contain-
ing alterations and amendments, which have been promulgated in orders or taken
from former volumes of regulations, was issued to the Army on May 1, 1847.
On January 1, 1857, a volume of Army Regulations, containing a number of impor-
tant modifications, together with a general rearrangement of paragraphs and subject-
matter, was prepared under the direction of Secretary Davis, and published with the
Regulations and Articles of War.5
The thirty-seventh section of the act of July 28, 1866 (14 Stat. L., 337), directed
the Secretary of War 'Ho have prepared and to report to Congress at its next session
a code of regulations for the government of the Army and of the militia in actual
service, which shall embrace all necessary orders and forms of a general character for
the performance of all duties incumbent on officers and men in the military service,
including rules for the government of courts-martial; the existing regulations to
remain in force until Congress shall have acted on said report." No code of regula-
tions having been submitted, Congress provided, in section 20 of the act of July 15,
1870 (16 Stat. L., 319), that "the Secretary of War shall prepare a system of general
regulations for the administration of the affairs of the Army, which, when approved
by Congress, shall be in force and obeyed until altered or revoked by the same
authority, and said regulations shall be reported to Congress at its next session:
Provided, That the said regulations shall not be inconsistent with the laws of the
United States."
In conformity to this legislation a code of regulations, which had been prepared by a
board of officers of which Inspector-General Marcy was the president, was submitted to
the House of Representatives on February 17, 1873, and was by that body referred t<
Committee on Military Affairs and ordered to be printed. No steps looking to their
adoption were taken during the remainder of the session, and the Finty-second Con-
182 MILITAEY LAWS OF THE UNITED STATES.
etc
cineal rank> 494> *n ever.Y Official Army Register hereafter issued
upei49' the lineal rank of a11 officers of tne line of tne Army shall
be given separately for the different arms of the service;
and if the officer be promoted from • the ranks, or shall
have served in the Volunteer Army, either as an enlisted
man or officer, his service as a private and noncommissioned
officer shall be given, and in addition thereto the record of
his service as volunteer. Sec. 2, act of June 18, 1878 (20
Stat. L.,149).
gress adjourned without action. The question was taken up by the Military Com-
mittee of the House of Representatives in the Forty-third Congress, and the proposi-
tion of adopting a code of Army Regulations was carefully considered. The conclu-
sion reached by the committee was that the power to make and amend or alter reg-
ulations had best be left to Executive discretion. To that end a recommendation
was submitted, which was adopted by Congress and approved by the President on
March 1, 1875 (18 Stat. L., 337). This enactment repealed section 20 of the act of
July 15, 1870, and authorized the President "to make and publish regulations for the
government of the Army in accordance with existing laws."
Section 2 of the act of June 23, 1879 (21 Stat. L., 34) , authorized and directed the
Secretary of War ' ' to cause all the regulations now in force to be codified and pub-
lished to the Army," and provided that the expense attending the publication of the
work should be defrayed from the appropriation for the contingent expenses of the
Army for the current fiscal year. Under the authority thus conferred the Regula-
tions of 1881 were prepared and issued to the Army, the order of promulgation bear-
ing date February 17, 1881. A revision and condensation of this volume was issued
by the Secretary of War on February 9, 1889. The Regulations now in force became
effective on October 31, 1895,* having received Executive approval on that date.
CHAPTER XI.
THE MILITARY ESTABLISHMENT ^GENERAL PROVI-
SIONS OF ORGANIZATION.
THE MILITARY FORCES OF THE UNITED STATES.
COMPOSITION.
THE REGULAR ARMY THE VOLUNTEER ARMY — THE MILITIA.8
495-498. Composition.
499-508. The permanent establishment.
509-514. The war establishment.
515-516. Increase of 1899.
517-528. The Volunteer Armv.
Par.
529-534. Tactical organizations.
535-542. Disbandment.
543-554. The Volunteer Army of 1899.
General officers, aids, and mil-
itary secretaries.
COMPOSITION.
Par.
495. The national forces.
496. Composition.
497. The Regular Army.
498. The Volunteer Army.
499. The Regular Army. *
500. Composition.
501. Native troops, Philippine Islands.
Par.
502. The same, officers.
503. The same, pay and allowances.
504. The same, enlisted men.
505. The Porto Rican regiment.
506. Indian scouts.
507. 508. Enlisted strength of the Army,
restriction.
495. All able-bodied male citizens of the United States,
and persons of foreign birth who shall have declared their
intention to become citizens of the United States under
and in pursuance of the laws thereof, between the ages of
eighteen and forty -five years, are hereby declared to con-
stitute the national forces, and, with such exceptions and
under such conditions as may be prescribed by law, shall
be liable to perform military duty in the service of the
United States. Sec. Jf, act of April 22, 1898 (30 Stat. L.,
361).
496. The organized and active land forces of the United
States shall consist of the Army of the United States and 2' v-
national
p- a
1 For a note respecting the statutory history of the military establishment, see the
end of chapter.
- For statutes respecting the militia, see chapter XXXV, post.
183
184 MILITARY LAWS OF THE UNITED STATES.
of the militia of the several States when called into the
service of the United States:2 Provided, That in time of
war the Army shall consist of two branches which shall be
designated, respectively, as the Regular Army and the
Volunteer Army of the United States. l Sec. 8, ibid.
Am6 Regular 497. The Regular Army is the permanent military estab-
_ AP£.22'Jg8>s-lishment, which is maintained both in peace and war ac
o, V. oU, p. obi.
cording to law.2 Sec. 3, ibid.
Am£V°lunteer 498- Tne Volunteer Army shall be maintained -only dur-
4 v^o5?' 36i8' s' iQg the existence of war, or while war is imminent, and
shall be raised and organized, as in this act provided, only
after Congress has or shall have authorized the President
to raise such a force or to call into the actual service of the
United States the militia of the severa. States: Provided,
That all enlistments for the Volunteer Army shall be for
a term of two years, unless sooner terminated, and that all
officers and men composing said army shall be discharged
from the service of the United States when the purposes
for which they were called into service shall have been
accomplished, or on the conclusion of hostilities.3 Sec. h
THE PERMANENT ESTABLISHMENT.
THE REGULAR ARMY.
The Regular -499. The Regular Army is the permanent military
Apr! 22, 1898, s. establishment, which is maintained both in peace and war
according to law. Sec. 3, act of April ##, 1898 (30 Stat.
L. 361).
composition. 5QO. From and after the approval of this act the Army
of the United States, including the existing organizations,
shall consist of:
3iFeb?4l' 1901> v" Fifteen regiments of cavalry.
sec. 1694 R. s. A corps of artillery.
Thirty regiments of infantry.
One Lieutenant-General.
1 The invariable policy of the Government has been to consider the military forces
as falling into two classes: Those who were soldiers or sailors by profession, irre-
spective of the national exigency, who took war when it came, and, if they survived
it, continued to make military occupation the business of their lives; second, those
who left their ordinary avocations at the outbreak of or during the continuance of
hostilities and enlisted with the expectation of serving only so long as the exigency
continued. Cleary v. U. S., 35 Ct. Cls., 207, 211.
2 For the composition and organization of the Regular Army, see paragraphs 499 to
508, post; see also the chapters entitled, respectively, STAFF DEPARTMENTS and THE
TROOPS OF THE LINE. For the war organization of the Regular Army, see paragraphs
509 to 514, post.
3 For organization, composition, etc., of the volunteer armies see act of April 21,
1898 (30 Stat. L., 361); for composition and organization of the volunteer forces
authorized by the act of March 2, 1899, see paragraphs 543 to 554, post.
MILITARY LAWS OF THE UNITED STATES. 185
\
Six major-generals.
Fifteen brigadier-generals.
An Adjutant-General's Department.
An Inspector-General's Department.
A Quartermaster's Department.1
A Subsistence Department.8
A Pay Department.
A Medical Department.3
A Corps of Engineers.*
An Ordnance Department.6
A Signal Corps.6
The officers of the Record and Pension Office.
The Chaplains.
The officers and enlisted men of the Army on the retired
list.
The professors, the Corps of Cadets, the Army Detach-
ments, and band of the Military Academy.
Indian Scouts, as now authorized by law; and such other
officers and men as may hereinafter be provided for. Act
of February 2, 1901 (31 Stat. Z., 748).
NATIVE TROOPS — TROOPS IN THE PHILIPPINE ISLANDS.
501. That when in his opinion the conditions in the p JrPf fp jfj J1®
Philippine Islands justify such action the President isjgggf- Organi'
authorized to enlist natives of those islands for service in 36f ^V.'p! 757. 8'
the Army, to be organized as scouts, with such officers as
he shall deem necessary for their proper control, or as
troops or companies, as authorized by this act, for the
Regular Army. The President is further authorized, in
his discretion, to form companies, organized as are com-
panies of the Regular Army, in squadrons or battalions,
with officers and noncommissioned officers corresponding
to similar organizations in the cavalry and infantry arms.
The total number of enlisted men in said native organi-
zations shall not exceed twelve thousand, and the total
enlisted force of the line of the Army, together with such
native force, shall not exceed at any one time one hundred
thousand. Sec. 36, act of February 2, 1901 (31 Stat. Z.,
757).
1 Including a force of post quartermaster-sergeants and detachment of army serv-
ice men at the Military Academy.
2 Including a force of post commissary-sergeants.
3 Including the Hospital Corps and the nurse corps (female).
* Including a band and three battalions of engineer soldiers.
6 Including a corps of ordnance sergeants and a force of enlisted men of ordnance.
6 Including an enlisted force of sergeants, corporals, and privates.
186 MILITARY LAWS OF THE UNITED STATES.
The same, offi- 502. The majors to command the squadrons and bat-
ceibtd. talions shall be selected by the President from captains of
the line of the Regular Army, and while so serving they
shall have the rank, pay, and allowances of the grade of
major. The captains of the troops or companies shall be
selected by the President from the first lieutenants of the
line of the Regular Army, and while so serving they shall
have the rank, pay, and allowances of captain of the arm
to which assigned. The squadron and battalion staff offi-
cers, and first and second lieutenants of companies, may
be selected from the noncommissioned officers or enlisted
men of the Regular Army of riot less than two years'
service, or from officers or noncommissioned officers or
enlisted men serving, or who have served, in the volunteers
subsequent to April twenty-first, eighteen hundred and
ninety -eight, and officers of those grades shall be given
provisional appointments for periods of four years each,
and no such appointments shall be continued for a second
or subsequent term unless the officer's conduct shall have
been satisfactory in every respect. Ibid.
andhanwanceJ ^^' When, in the opinion of the President, natives of
IMd- the Philippine Islands shall, by their services and charac-
ter, show fitness for command, the President is authorized
to make provisional appointments to the grades of second
and first lieutenants from such natives, who, when so ap-
pointed, shall have the pay and allowances to be fixed by
the Secretary of War, not exceeding those of correspond-
ing grades of the Regular Army. Ibid.
The same. En- 5Q4. rphe pay and allowances of provisional officers of
listed men. r ™
JbM. native organizations shall be those authorized for officers
of like grades in the Regular Army. The pay, rations,
and clothing allowances to be authorized for the enlisted
men shall be fixed by the Secretary of War, and shall not
exceed those authorized for the Regular Army. Ibid.
THE PORTO RICAN REGIMENT.
Porto Rican 505. The President is authorized to organize and main-
regiment. Or- . '
ganijation. tain one provisional regiment of not exceeding three bat-
37 v. 3i/p. 768. talions of infantry, for service in Porto Rico, the enlisted
strength thereof to be composed of natives of that island
as far as practicable. The regiment shall be organized as
to numbers as authorized for infantry regiments of the
Regular Army. The pay, rations, and clothing allowances
to be authorized for the enlisted men shall be fixed by the
Secretarv of War, and shall not exceed those authorized
MILITARY LAWS OF THE UNITED STATES.
187
K g
for the Regular Army. The field officers shall be selected
from officers of the next lower grades in the Regular Army
and shall, while so serving in the higher grade, have the
rank, pay, and allowances thereof. The company and
regimental and battalion staff officers shall be appointed
by the President. The President may, in his discretion,
continue with their own consent the volunteer officers and
enlisted men of the Porto Rico regiment, whose terms of
service expire by law July first, nineteen hundred and
one. Enlistments for the Porto Rico regiment shall be
made for periods of three years, unless sooner discharged.
The regiment shall be continued in service until further
directed by Congress. Sec. 37, act of February 2, 1901
(31 Stat. Z., 758).
INDIAN SCOUTS.
506. The President is authorized to enlist a force of
Indians, not exceeding one thousand, who shall act as ^uv
scouts in the Territories and Indian country. They shall 19^,
be discharged when the necessity for their service shall
cease, or at the discretion of the department commander.
A proportionate number of noncommissioned officers may
be appointed. And the scouts, when they furnish their
own horses and horse equipments, shall be entitled to
receive forty cents per day for their use and risk so long
as thus employed.1 Act of August 12, 1876 (19 Stat. Z.,
131).
ENLISTED STRENGTH OF THE ARMY.
507. The total enlisted force of the line of the Army, Maximum
together with such native force, shall not exceed, at any s Feb. 2,' 1901, s.
one time, one hundred thousand.2 Sec. 36, act of Febru,-*
ary 8, 1901 (31 Stat. Z., 757).
508. The President is authorized to maintain the en-
listed force of the several organizations of the Army at
JThe act of July 24, 1876 (19 Stat. L., 97), which limited the number of Indian
scouts to be employed to 300 was repealed by the act of August 12, 1876 (ibid., 131).
2 The acts of June 1, 1874 (18 Stat. L., 73), March 3, 1875 (ibid., 452), July 24, 1876
(19 Stat. L.,77), November 21, 1877 (20 Stat. L., 2), and June 18, 1878 (ibid., 146), con-
tained a provision limiting the number of enlisted men in the Army to 25,000, includ-
ing hospital stewards and Indian scouts. The act of June 29, 1879 (21 Stat. L., 30),
contained the requirement "that no money appropriated by this act shall be paid for
recruiting the Army beyond the number of 25,000 enlisted men, including Indian
scouts and hospital stewards; and thereafter there shall be no more than 25,000
enlisted men in the Army at any one time, unless otherwise authorized by law."
^1 M.W i yiit» IkTWCMta J.J., J.VM ^, O.11U. ITJ-ttiUll O, -LOOU ^lUiU.., O«J / ). J. ilC a^H V-M. -"- * *, -^~~ .
(24 Stat. L., 435), which provided that the enlisted force of the Hospital Corps should
be in excess of the strength authorized by law, was expressly repealed by the act of
188 MILITARY LAWS OF THE UNITED STATES.
their maximum strength, as fixed by this act, during the
present exigencies of the service, or until such time as
Congress may hereafter otherwise direct.1 Sec. 30, act
of February 2, 1901 (31 Stat. Z., 756}.
THE WAR ESTABLISHMENT.
THE REGULAR ARMY — THE VOLUNTEER ARMY.
THE REGULAR ARMY.
Par.
509. Increase in strength of troops, com-
panies, and batteries.
510. Batteries in time of war.
Par.
512. Pay of enlisted men in time of war.
512. Pay of officers for increased com-
mands.
511. Increase in second lieutenants. | 513. Reduction of war establishment.
tc!n 509- UPon a declaration of war2 by Congress, or declara-
^ Congress that war exists, the enlisted strength of
a company, troop, and battery, respectively, may, in the
discretion of the President, be increased to comprise not
exceeding:3
For each company of infantry: One first sergeant, one
quartermaster-sergeant, four sergeants, twelve corporals,
two musicians, one artificer, one wagoner, and eighty -four
privates; total enlisted, one hundred and six.
For each troop of cavalry: One first sergeant, one quar-
termaster-sergeant, six sergeants, eight corporals, two
farriers and blacksmiths, two trumpeters, one saddler, one
wagoner, seventy-eight privates; total enlisted, one hun-
dred.
March 8, 1898 (30 Stat L., 261), which fixed the enlisted strength of the Army at
26,610.
Sections 6 and 7 of the act of July 29, 1861 (12 Stat. L., 279), increasing the mili-
tary establishment, declared such increase to be for the period of the existing rebel-
lion, and, unless otherwise ordered by Congress, required the military establishment
to be reduced to a number not exceeding 25,000 men, "within one year after the
constitutional authority of the Government of the United States shall be reestab-
lished, and organized resistance to such authority shall no longer exist." Section 7
of the act of April 26, 1898 (30 Stat. L., 365), and section 15 of the act March 2, 1899
(ibid., 981), contained similar requirements.
2 By the act of April 25, 1898, war was formally declared to exist with the Kingdom
of Spain. The following is the text of the declaration: "First. That war be, and the
same is hereby, declared to exist, and that war has existed since the twenty-first day
of April, anno Domini eighteen hundred and ninety-eight, including said day,
between the United States of America and the Kingdom of Spain.
"Second. That the President of the United States be, and he hereby is, directed and
empowered to use the entire land and naval forces of the United States, and to call
into the actual service of the United States the militia of the several States, to such
extent as may be necessary to carry this act into effect." Act of April 25, 1898.
3 Under the authority conferred by this statute a third battalion was established
by the President in each of the infantry regiments of the Regular Army on April 26,
1898. General Orders 27 and 32, A. G. O., 1898. The companies of cavalry, artil-
lery, and infantry were ordered to be recruited to the war strength authorized by the
act of April 26, 1898, by G. 0. 27, A. G. O. of 1898. The three-battalion organiza-
tion having been adopted for the infantry of the permanent establishment by sec-
tion 10 of the act of February 2, 1901 (30 Stat. L., 750), the authority conferred by sec-
tion 2, act of April 26, 1898, has ceased to be operative,
MILITARY LAWS OF THE UNITED STATES. 189
For each battery of heavy artillery: One first sergeant,
twenty-two sergeants, ten corporals, two musicians, two
artificers, one wagoner, one hundred and sixty-two pri-
vates; total enlisted, two hundred.
For each battery of field artillery: One first sergeant,
one quartermaster-sergeant, one veterinary sergeant, six
sergeants, fifteen corporals, two farriers, two artificers,
one saddler, two musicians, one wagoner, one hundred
and forty-one privates; total enlisted, one hundred and
seventy -three.
For each company of engineers: One first sergeant, ten
sergeants, ten corporals, ten musicians, sixty-four first-
class privates, sixty-three second-class privates; total en-
listed, one hundred and fifty. In time of war there shall
be added to the Signal Corps of the Army ten corporals,
one hundred first-class privates, and forty second-class
privates, who shall have the pay and allowances of engineer
troops of the same grade. Sec. 2, act of April 26, 1898
(30 Stat. L.,364).
510. In time of war the President shall cause the batteries ti^e of war68 in
of artillery authorized by law to be organized as heavy or Sec> 5> md-
field artillery, as in his judgment the exigencies of the
service may require. Sec. 5, ibid.
511. When recruited to their war strength the Presi- 0ndCSenantT
dent may add one second lieutenant to each battery of Sec-4> ibid-
artillery; such offices to be filled by appointments, as pre-
scribed by existing law. Sec. 4, ibid.
PAY AND ALLOWANCES.
512. In time of war the pay proper of enlisted men shall menyinf tfmfof
be increased twenty per centum over and above the rates w|£c 6 ibid
of pay as fixed by law: Provided, That in war time no
additional increased compensation shall be allowed to
soldiers performing what is known as extra or special
duty: Provided further, That any soldier who deserts
shall, besides incurring the penalties now attaching to the
crime of desertion, forfeit all right to pension which he
might otherwise have acquired. Sec. 6, ibid.
513. In time of war every officer serving with troops
operating against an enemy who shall exercise,
assignment in orders issued by competent authority, a
command above that pertaining to his grade, shall be
entitled to receive the pay and allowances of the grade
appropriate to the command so exercised: Provided, That
a rate of pay exceeding that of a brigadier-general shall not
be paid in any case by reason of such assignment. Sec. 7,
ibid.
190 MILITARY LAWS OF THE UNITED STATES.
REDUCTION OF WAR ESTABLISHMENT.
514. At the end of any war in which the United States
may become involved the Army shall be reduced to a peace
basis by the transfer in the same arm of the service or
absorption by promotion or honorable discharge under
such regulations as the Secretary of War may establish
of supernumerary commissioned officers and the honor-
able discharge or transfer of supernumerar}^ enlisted men;
and nothing contained in this act shall be construed as
authorizing a permanent increase in the commissioned or
enlisted force of the Regular Army beyond that now pro-
vided by the law in force prior to the passage of this act,
except as to the increase of twenty-five majors provided
for in section one hereof. Sec. 7, ibid.
INCREASE OF 1899.1
crease^arch1^ ^^' ^° mee^ ^ne present exigencies of the military serv-
J>8s?98' 12> v< ^ i°e the President is hereby authorized to maintain the
Regular Army at a strength of not exceeding sixty-five
thousand enlisted men, to be distributed amongst the
several branches of the service, including the Signal
Corps, according to the needs of each.3 Sec. 1%, act of
March 2, 1899 (30 Stat. Z., 979).
1 For the volunteer establishment authorized by the act of March 2, 1899 (30 Stat.
L., 979), see paragraphs 543 to 554, post.
2 Under the authority conferred by this section the following distribution of enlisted
men was authorized by the President. See G. O. 37, A. G. O., 1899:
CAVALRY.
12 troops of 100 enlisted men each 1 , 200
Regimental and squadron noncommissioned staff 6
Regimental band 28
Total number of enlisted men in regiment 1, 234
Number of regiments 10
Total number of enlisted men in cavalry 12, 340
Each troop of cavalry shall consist of —
1 first sergeant. 1 saddler.
1 quartermaster-sergeant. 1 wagoner.
6 sergeants. 2 trumpeters.
8 corporals. 76 privates.
2 cooks.
2 farriers and blacksmiths. 100
ARTILLERY.
12 batteries of heavy artillery, 120 enlisted men each 1 , 440
2 batteries of field artillery, 120 enlisted men each 240
Regimental noncommissioned staff
Regimental band ^ 28
Total number of enlisted men in regiment 1 , 710
Number of regiments - «. 7
Total number of enlisted men in artillery 11, 970
MILITARY LAWS OF THE UNITED STATES. 191
516. Such increased regular * * * force shall con- Discharge of in-
.. . . ! j . ,, •,,!/. i creased force.
tinue in service only during the necessity therefor, and ibid.
not later than July tirst, nineteen hundred and one. Ibid.
[Footnote ~ — Continued.]
Each battery of heavy artillery shall consist of —
1 first sergeant. 2 mechanics.
1 quartermaster-sergeant. 2 cooks.
8 sergeants. 92 privates.
12 corporals.
2 musicians. 120
Each battery of field artillery shall consist of —
1 first sergeant. 2 musicians.
1 stable sergeant, 2 cooks.
1 quartermaster-sergeant. 91 privates.
6 sergeants.
12 corporals. 120
4 artificers.
INFANTRY.
12 companies of 112 enlisted men each 1, 344
Regimental and battalion noncommissioned staff 6
Regimental band 28
Total number of enlisted men in regiment 1, 378
Number of regiments . 25
Total number of enlisted men in infantry 34, 450
Each company of infantry shall consist of —
1 first sergeant. 2 musicians.
1 quartermaster-sergeant. 1 artificer.
4 sergeants. 89 privates.
12 corporals.
2 cooks. 112
Battalion of engineers 752
Total line of the Army § 59, 512
STAFF DEPARTMENTS, ARMY SERVICE DETACHMENT, ETC.
U. S. Military Academy, General Army Service, cavalry detachment, field
musicians and band 250
Signal Corps, 720, organized as follows:
100 first-class sergeants. 300 first-class privates.
200 sergeants. 50 second-class privates.
50 corporals. 20 cooks.
720
Hospital Corps, 2,600, organized as follows:
Hospital stewards 175
Acting hospital stewards 325
Privates 2, 100
2,600
Ordnance Department 60&
Commissary-sergeants 100
Post quartermaster-sergeants 105
Electrician sergeants 75
Indian scouts 75
Recruiting parties, recruits, etc 500
Total staff , etc .. 5,030
Line of the Army 59, 512
Total.. . 64,542
192 MILITARY LAWS OF THE UNITED STATES*
THE VOLUNTEER ARMY.
ORGANIZATION AND RECRUITMENT.
Par.
517. Apportionment.
518. The same, organization.
519. Medical staff.
520. Militia organizations, officers.
521. Appointment of officers.
522. Examining boards.
Par.
523. Acceptance of militia organizations.
524. Term of enlistment.
525. Recruitment.
526. Returns and muster rolls.
527. Pay and allowances.
528. The same.
organization 517. When it becomes necessary to raise a volunteer
ana apportion- •*
mApr 22 1898 army' tne -President shall issue his proclamation stating
a. 5, v. so, p. SGI.' the number of men desired, within such limits as may be
fixed by law, and the Secretary of War shall prescribe
such rules and regulations, not inconsistent with the terms
of this Act, as may in his judgment be necessary for the
purpose of examining, organizing, and receiving into
service the men called for: Provided, That all men re-
ceived into service in the Volunteer Army shall, as far as
practicable, be taken from the several States and Terri-
tories and the District of Columbia and the Indian Terri-
tory in proportion to their population. And any company,
troop, battalion, or regiment from the Indian Territory
shall be formed and organized under such rules and regu-
lations as shall be prescribed by the Secretary of War.1
Sec. 5, act of April 22, 1898 (30 Stat. L., 361).
organization. 518. The Volunteer Army and the militia of the States
when called into service of the United States shall be
1 Under the authority conferred by the acts of April 20 and April 22, 1898, and in
pursuance of the declaration of war with the Kingdom of Spain contained in the act
of April 25, 1898, a call was addressed to the governors of the several States for a
force of 125,000 volunteers. G. 0. 30, A. G. 0. 1898. For regulations respecting the
enrollment, armament, and equipment of the volunteer forces thus called into the
service of the United States, see General Orders 26, 31, 33, and 41, A. G. O. of 1898.
Section 6 of the act of April 22, 1898, conferred authority upon the President "to
organize companies, troops, battalions, or regiments, possessing special qualifications,
from the nation at large, not to exceed three thousand men, under such rules and
regulations, including the appointment of the officers thereof, as may be prescribed
by the Secretary of War." The act of May 11, 1898 (30 Stat. L., 405), authorized
the organization of "a volunteer brigade of engineers from the nation at large, to
consist of not more than three regiments and not more than three thousand five
hundred men, possessing the special qualifications necessary for engineer troops,
under euch rules and regulations, including the appointment of the officers thereof,
as may be prescribed by the Secretary of War. ' ' By the same enactment the organi-
zation of "an additional volunteer force of not exceeding ten thousand enlisted men
possessing immunity from diseases incident to tropical climates" was also authorized.
The officers of these forces were to be appointed by the President with the advice
and consent of the Senate, and they were not apportioned among the States and Ter-
ritories, as required in section 5 of the act of April 22, 1898. The act of May 18,
1898 (30 Stat. L., 418), authorized the formation of a volunteer signal corps. This
statute contained the requirement that "two-thirds of all officers below the rank of
major and a like proportion of the enlisted men shall be skilled electricians or tele-
graph operators."
MILITARY LAWS OF THE UNITED STATES.
193
Medical staff.
Ibid'
Army
organized under, and shall be subject to, the laws, orders,
and regulations governing the Regular Army. Section 6,
ibid.
519. Each regiment of the Volunteer Army shall have
one surgeon, two assistant surgeons, and one chaplain, and
all the regimental and company officers shall be appointed
by the governors of the States in which their respective
organizations are raised. Ibid.
520. When the members of any company, troop, battery,
battalion, or regiment of the organized militia of any State
shall enlist in the Volunteer Army in a body, as such
company, troop, battery, battalion, or regiment, the regi-
mental, company, troop, battery, and battalion officers in
service with the militia organization thus enlisting may
be appointed by the governors of the States and Terri-
tories, and shall when so appointed be officers of corre-
sponding grades in the same organization when it shall
have been received into the service of the United States
as a part of the Volunteer Army. Ibid.
521. The governor of any State or Territory may, with
the consent of the President, appoint officers of the Regu-
lar Army in the grades of field officers in organizations of
the Volunteer Army, and the President may appoint offi-
cers of the Regular Army in the grade of field officers in
organizations of the Volunteer Army raised in the District
of Columbia and the Indian Territory, and in the regiments
possessing special qualifications, provided for in section
six of an act of Congress approved April twenty-second,
eighteen hundred and ninety-eight, and in section two of
the act of Congress approved May eleventh, eighteen
hundred and ninety-eight; and officers thus appointed
shall be entitled to retain their rank in the Regular Army:
Provided, That not more than one officer of the Regular
7 .
Army shall hold a commission in any one regiment of the merit.
Volunteer Army at the same time: And provided further,
That officers so appointed shall be entitled to receive only Pay.
the pay and allowances of their rank in the volunteer May 28, i898,s.
organization.1 Sec. 0, act of May 28, 1898 (30 Stat. L., 2'V-30'P«421-
421).
522. The general commanding a separate department or Militjj2^°fgf
a detached army is authorized to appoint from time to ciencyof officers.
...»..., , Apr. 22, Io9o, 8.
time military boards of not less than three nor more than H v. so, P. 304.
five Volunteer officers of the Volunteer Army to examine
Limit for each
volunteer regi-
1 But see section 12, act of April 26, 1898, paragraph 553, post
22924—08 - 13
194 MILITARY LAWS OF THE UNITED STATES.
into the capacity, qualifications, conduct, and efficiency of
any commissioned officer of said army within his command:
Rank of mem- Provided, That each member of the board shall be superior
bers of board.
in rank to the officer whose qualifications are to be inquired
Adverse report into: And provided further, That if the report of such a
board is adverse to the continuance of any officer, and the
report be approved by the President, such officer shall be
discharged from service in the Volunteer Army, at the
discretion of the President, with one month's pay and
allowances. Sec. 14, act of April 22, 1898 (30 Stat. L.,
364).
zations!a °rgani 523- ln tne event of a call by the President for either
s. t^sofp.1!!?.' volunteers or the militia of the country the President is
authorized to accept the quotas of troops of the various
States and Territories, including the District of Columbia
and Indian Territory, as organized under the laws of the
States and Territories, including the District of Columbia,
in companies, troops, and batteries, each to contain so far
as practicable the number of enlisted men authorized in
this act for each arm of the service, and battalions of not
less than three such companies and regiments of not less
than ten nor more than twelve such companies. But this*
proviso shall apply to companies, troops, batteries, bat-
talions, and regimental organizations and none other: Pro-
vided further, That in volunteer organizations received
into the service under this act and existing laws, one hos-
pital steward shall be authorized for each battalion. Sec.
3, act of April 26, 1898.
Jen* of enlist- 524. All enlistments for the Volunteer Army shall be
sec. 4, ibid. for a term of two years, unless sooner terminated. Sec. 4,
ibid.
IS^SS114' 525- A11 organizations of the Volunteer Army shall be
so recruited from time to time as to maintain them as near
to their maximum strength as the President may deem
necessary, and no new organization shall be accepted into
service from any State unless the organizations already in
service from such State are as near to their maximum
strength of officers and enlisted men as the President may
deem necessary. Sec. 7, ibid.
RETURNS AND MUSTER ROLLS.
rouf * ums and 526> A11 returns and muster rolls of organizations of the
sec.8,twd. Volunteer Army and of militia organizations while in the
service of the United States shall be rendered to the Adju-
tant-General of the Army, and upon the disbandment of
MILITARY LAWS OF THE UNITED STATES. 195
such organizations the records pertaining to them shall be
transferred to and filed in the Record and Pension Office
of the War Department. And regimental and all other
medical officers serving with volunteer troops in the field
or elsewhere shall keep a daily record of all soldiers
reported sick or wounded, as .shown by the morning calls
or reports, and shall deposit such reports with other reports
provided for in this section with the Record and Pension
Office, as provided herein for other reports, returns, and %
muster rolls. Sec. 8} ibid.
PAY AND ALLOWANCES.
527. All officers and enlisted men of the Volunteer Payandaiiow-
Army, and of the militia of the States when in the service sec.'i2, ma.
of the United States, shall be in all respects on the same
footing as to pa}r, allowances, and pensions as that of offi-
cers and enlisted men of corresponding grades in the
Regular Army. Sec. 12, ibid.
528. The pay and allowance of such of the volunteers as Pay of voiun-
are received into the service of the United States under SfroiimentWand
the Act of Congress approved April twenty-second, eight- mMayr26,i898,v.
een hundred and ninety-eight, and the acts supplemental ' p*
thereto, shall be deemed to commence from the day on
which they joined for duty and are enrolled at the battalion,
regimental, or State rendezvous. Act of May 26, 1898
(30 Stat. L
TACTICAL ORGANIZATIONS, STAFF OFFICERS.
Par.
529. Corps, divisions, brigades.
530. Staff, army corps.
531. Staff, division and brigade.
532. The same termination of appoint-
ment.
Par.
533. Eligibility of regular officers.
534. Volunteer signal corps.
529. In time of war, or when war is imminent, the troops .corps, divi-
in the service of the United States, whether belonging to gades.
, ,r , .... *I _ April 22, 1898.
tne Kegular or V olunteer Army or to the militia, snail be s. 9, v. so, p. 362.
organized, as far as practicable, into divisions of three
brigades, each brigade to be composed of three or more
regiments; and whenever three or more divisions are
assembled in the same army the President is authorized to
organize them into army corps, each corps to consist of
not more than three divisions.1 Sec. 9, act of April %%,
1898(30 Stat. L.,
1 Seven army corps were constituted by the President in G. O., 36, A. G. O., 1898.
They are to be numbered, serially, from one to seven.
196 MILITARY LAWS OF THE UNITED STATES.
GENERAL STAFF OFFICERS.
staff of army 530. The staff of the commander of an army corps shall
sec! 10, ibid, consist of one assistant adjutant-general, one chief engi-
neer, one inspector-general, one chief quartermaster, one
chief commissary of subsistence, one judge-advocate, and
one chief surgeon, who shall have, respectively, the rank
of lieutenant-colonel; one assistant adjutant-general, who
shall have the rank of captain, and the aids-de-camp au-
thorized by law. Sec. 10, ibid.
staff of divi- 531. The staff of the commander of a division shall con-
sion and bri- . .
gade. sist of one assistant adjutant-general, one engineer officer,
one inspector-general, one chief quartermaster, one chief
commissary of subsistence, a chief signal officer,1 and one
chief surgeon, who shall have, respectively, the rank of
major, and the aids-de-camp authorized by law. The staff
of the commander of a brigade shall consist of one assist-
ant adjutant-general, one assistant quartermaster, and one
commissary of subsistence, each with the rank of captain;
one surgeon, and the aids-de-camp authorized by law.
Sec. 10, ibid.
532. The staff officers herein authorized for the corps,
division, and brigade commanders may be appointed by
the President, by and with the advice and consent of the
Senate, as officers of the Volunteer Army, or may be
assigned by him, in his discretion, from officers of the
Regular Army, or the Volunteer Army, or of the militia
Proviso. in the service of the United States: Provided, That when
Terra in ation
of appointment, relieved from such staff service said appointments or as-
signments shall terminate. Sec. 10, ibid.
Thesama, ^ 533. Officers of the Regular Army shall be eligible for
regular officers. sucn staff appointments, and shall not be held to vacate
—not to termi- their offices in the Regular Army by accepting the same,
commission. but shall be entitled to receive only the pay and allowances
—pay. of their staff rank: Provided further, That officers of the
olc ^e£u^ar Army receiving commissions in regiments of
Army. engineers, or any other commissions in the Volunteer
Army, shall not be held to vacate their offices in the Reg-
ular Army by accepting the same, but shall be entitled to
receive only the pay and allowances of such volunteer
' 1898> v* rank while serving as such. Act of May 28, 1898 (30 Stat.
L., J&l).
sig- 534 The volunteer signal corps shall consist of one
colonel, one lieutenant-colonel, one major as disbursing
1 Joint resolution No. 57, July 8, 1898 (30 Stat. L., 752).
MILITARY LAWS OF THE UNITED STATES.
officer, and such other officers and men as may be required,
not exceeding- one major for each army corps, and two
captains, two first lieutenants, two second lieutenants, five
first-class sergeants, ten sergeants, ten corporals, and
thirty first-class privates to each organized division of
troops. Sec. 2, act of May 28, 1S9S (30 Stat. Z., 417).
DISBANDMENT OF THE VOLUNTEER ARMY.
197
Par.
535. Discharge of volunteers.
536. Extra pay on discharge.
537. 538, 539. The same, payment
heirs.
to
Par.
540. Property, accountability of
charged officers.
541. Travel pay on discharge by order.
542. Colors of volunteer regiments.
dis-
535. All officers and men composing said army shall be
discharged from the service of the United States when sec.4,iwd.
the purposes for which they were called into service shall
have been accomplished, or on the conclusion of hostili-
ties.1 Sec. 4, iUd. Act of April 22, 1898 (30 Stat.
L., 364}.
of
EXTRA PAY ON DISCHARGE.
536. In lieu of granting leaves of absence and furloughs
to officers and enlisted men belonging to companies and ^^'^ 1899) v>
regiments of United States Volunteers prior to muster
out of the service, all officers and enlisted men belonging
to volunteer organizations hereafter mustered out of the
service who have served honestly and faithfully beyond
the limits of the United States shall be paid two months'
extra pay on muster out and discharge from the service,
and all officers and enlisted men belonging to organiza-
tions hereafter mustered out of the service who have
served honestly and faithfully within the limits of the
United States shall be paid one month's extra pay on mus-
ter out and discharge from the service, from any money
in the Treasury not otherwise appropriated: Provided,
That the discharge of all officers and enlisted men from
the volunteer service of the United States shall, as far as
practicable, take effect on the date of the muster out of
the organization to which they belong, and that regiments
and other independent organizations shall be mustered out
1 The invariable policy of the Government has been to consider the military forces
as falling into two classes — those who were soldiers or sailors by profession, and
those who entered the service for the exigency only. To this latter class — to those
who have been discharged when the war ended — Congress have always and repeat-
edly given this same gratuity of two months additional pay to help the men through
the interval between their discharge and the resumption of their avocations in civil
life. Cleary v. U. S., 35 Ct. Cls., 207, 211. See note to paragraph 496, ante.
198 MILITARY LAWS OF THE UNITED STATES.
at camps within the limits of the United States or at the
rendezvous of the State, regiment, or independent organi-
zation.1 Act of January 12, 1899 (30 Stat. Z., 784).
Mar.sa?e'i899, 537- AU enlisted men in the Regular Army who enlisted
v. so, p. 1073. subsequent to the declaration of war for the war only and
mustered out of the service who have served honestly and
faithfully beyond the limits of the United States shall be
paid two months' extra pay on muster out and discharge
from the service, and all enlisted men in the Regular
Army who enlisted subsequent to the declaration of war
for the war only and mustered out of the service who have
served honestly and faithfully within the limits of the
United States shall be paid one month's extra pay on mus-
ter out and discharge from the service from any money in
the Treasury not otherwise appropriated, said moneys to
be immediately available. Act of March 3, 1899 (30
Stat. Z., 1073).
538- The act of January twelfth, eighteen hundred and
ninety-nine, is hereby amended so as to authorize the pay-
ment to the legal heirs or representatives of the officers
and enlisted men who died or were killed or who may die
in the service the extra pay provided for in that act for
officers and enlisted men who have been or are to be mus-
tered out. Ibid.
May lafiwo v 539* The act approved January twelfth, eighteen hun-
3i,p.2i7.' dred and ninety-nine, granting "extra pay to officers
and enlisted men of the United • States Volunteers,"
shall extend to all volunteer officers of the general staff
who have not received waiting orders pay prior to dis-
charge, at the rate of one month to those who did not
serve beyond the limits of the tTnited States and two
months to those who served beyond the limits of the
JThe term "service" as used in the act of January 12, 1899 (30 Stat. L., 784),
which provides extra pay to officers and enlisted men of tho United States Volun-
teers when "mustered out of service," meanc the military service of the United
States, and does not apply to officers or enlisted men of the Regular Army who, on
muster out as officers of volunteer organizations, return to duty in the Regular Army.
VComp. Dec., 529.
A soldier killed while running the guard did not serve "honestly and faithfully,"
within the meaning of the acts of January 12 and March 3, 1898, and his heirs are not
entitled to the extra pay therein provided. VI, ibid., 794.
Service in the Philippine Islands and service m the Hawaiian Islands is service
"beyond the limita of the United States" within the meaning of the act of January
12, 1899. VI Compt. Dec., 374, 379.
The extra pay allowed by the act of Jt nuary 12, 1899, and the acts amendatory
thereof, to officers and enlisted men of vo unteers on their muster out of the mili-
tary service, is not authorized in the case of an officer discharged on the adverse
report of a board of officers convened under section 14 of tho act of April 22, 1898
(ibid., 700); or in the case of a soldier discharged at his own request (ibid., 346);
or in the case of an officer on furlough or while awaiting muster out (ibid., 42).
MILITARY LAWS OF THE UNITED STATES. 199
United States; and officers and enlisted men of volunteer
organizations, who have served honestly and faithfully in
the Volunteer Army of the United States during the war
with Spain and have been honorably discharged without
furlough, or by reason of their services being no longer
required, or at any time by reason of wounds received, or
disability contracted in the service and in the line of duty,
and who have not received the extra pay granted in said
act or in subsequent acts of Congress supplemental
thereto: And this act shall be deemed to apply to officers
of volunteers who resigned and enlisted men of volunteers
who were discharged upon their own applications subse-
quent to the issue of orders for the muster out of their
organizations and prior to the dates of muster out. Act
of May 26, 1900 (31 Stat. L., 217).
PROPERTY ACCOUNTABILITY OP DISCHARGED OFFICERS.
ty ac~
540. Officers who at any time were accountable or re-
sponsible for public property shall be required, before final 2 y*1^
payment is made to them on discharge from the service,
to obtain certificates of nonindebtedness to the United
States from only such of the bureaus of the War Depart-
ment to which the property for which they were account-
able or responsible pertains, and the certificate from the
Chief of the Division of Bookkeeping and Warrants,
Treasury Department, and such certificates, accompanied
by the affidavits of officers, of nonaccountability or nonre-
sponsibility to other bureaus of the War Department,
certified to by the commanding officer of the regiment or
independent organization, shall warrant their final pay-
ment: Provided, That officers who have not been respon- oath
sible at any time for public property shall be required to
make affidavit of that fact, certified to by their command-
ing officers, which shall be accepted as sufficient evidence
to warrant their final payment on their discharge from the
service: Provided further, That mustering officers are
empowered to administer oaths in all matters pertaining to
the muster out of volunteers. Sec. 2, act of January 12,
1899 (30 Stat. L., 784).
TRAVEL PAY ON DISCHARGE BY ORDER.
541. When the Secretary of War, in the exercise of h
discretion, has directed the discharge of any enlisted men orjun'e 6 ,1900 ,
of the regular or volunteer forces of the Army, and the 31« p-
orders or instructions directing such discharge stated that
200 MILITAEY LAWS OF THE UNITED STATES.
such enlisted men were entitled to travel pay, such order
or instruction shall be sufficient authority for the payment
to the soldiers of the traveling allowances provided for
by section twelve hundred and ninety of the Revised Stat-
utes. And officers of the Pay Department of the Army
shall have credit in the settlement of their accounts for all
payments made in obedience to said orders or instructions
of the Secretary of War: Provided, That soldiers dis-
charged under such orders or instructions, which stated
that such soldiers were entitled to travel pay, and who
were absent by authority "on the date of the muster out of
their regiments or of discharge, are entitled to and will be
paid traveling allowances from place of muster out of their
regiments or the places designated in the final statements
as the place of discharge to the place of enlistment or
enrollment: Provided further , That the provisions of this
act shall apply only to cases that have arisen or shall arise
under orders or instructions for discharge with travel pay
issued between April twenty -first, eighteen hundred and
ninety-eight, and the date of the passage of this act: Pro-
vided further, That it shall not be held as applying to any
case in which the order directing the discharge did not set
forth that the soldier was entitled to travel pay. Act of
June 6, 1900 (31 Stat. L., 708).
COLORS OF VOLUNTEER REGIMENTS.
co?oeilenti°n °f 542- That the Secretary of War be, and he is hereby,
3ofpb890.' 18"' v' au^horized to permit volunteer regiments, on being mus-
tered out of the service of the United States, to retain all
of their regimental colors. Said colors shall be turned
over to the State authorities to which said regiments be-
long, and the regimental quartermaster in making his
returns may, in lieu of said colors and in full. release there-
for, file with the proper official of the War Department a
receipt from the quartermaster-general of said State that
said colors have been delivered to said State authorities.
Act of February 25, 1899 (30 Stat. L., 890).
THE VOLUNTEER ARMY OF 1899.
COMPOSITION AND ORGANIZATION.
Organization^ 543 ^o meet the present exigencies of the military serv-
s. 12, v. so, p. 979. jce the President is hereby authorized to * * * raise
a force of not more than thirty-five thousand volunteers
to be recruited as he may determine from the country at
MILITAEY LAWS OF THE UNITED STATES. 201
large, or from the localities where their services are needed,
without restriction as to citizenship or educational qualifi-
cations, and to organize the same into not more than twenty-
seven regiments organized as are infantry regiments of
war strength in the Regular Army, and three regiments
to be composed of men of special qualifications in horse-
manship and marksmanship, to be organized as cavalry for
service mounted or dismounted. Sec. 12, act of March 2,
1899(30 Stat. L.,979).
544. Each regiment shall have one surgeon, with the rank su^fnsmen t>s
of major; two assistant surgeons, one of whom shall have 1Ud-
the rank of captain and one that of first lieutenant, and
three hospital stewards. Ibid.
ENLISTMENTS AND REENLISTMENTS.
545. All enlistments for the volunteer force herein au- Enlistments.
thorized shall be for the term of two years and four months,
unless sooner discharged. Ibid.
546. Enlisted men of volunteers who desire to remain in Transfers,
the military service, either in the Regular Army or the
temporary force authorized by this act, may, if found
qualified therefor, be transferred to and enlisted in such
batteries, troops, or companies as may be below the maxi-
mum authorized strength, and when so transferred and
enlisted shall be credited on their new enlistment with the
periods of service rendered by them, respectively, as vol-
unteers.1 Sec. 1
GENERAL OFFICERS.
547. The President shall have power to continue in serv- General offl-
ice or to appoint, by and with the advice and consent of sec. is, ibid.
the Senate, brigadier-generals of volunteers, who, includ-
ing the brigadier-generals of the Regular Army, shall not
exceed one for every four thousand enlisted men actually
in service, and major-generals of volunteers, who, includ-
ing the major-generals of the Regular Army, shall not
exceed one for every twelve thousand enlisted men : Pro-
vided, That Regular Army officers continued or appointed
as general officers or as field or staff officers of volunteers,
under the provisions of this act shall not vacate their Regu-
lar Army commissions: And provided further, That no
general officers appointed under the provisions of this sec-
tion shall be continued in service as such beyond July first,
nineteen hundred and one. Sec. 13, ibid.
202
MILITARY LAWS OF THE UNITED STATES.
VOLUNTEER STAFF.
staff: composi- 548. The President is hereby authorized to continue in
tion. J
Sec. 14, ibid, service, or to appoint by and with the advice and consent
of the Senate, officers of the volunteer staff as follows:
Three assistant adjutant-generals with the rank of lieu-
tenant-colonel, and six assistant adjutant-generals with the
rank of major.
Three inspectors-general with the rank of lieutenant-
colonel, and six inspectors-general with the rank of major.
Five judge-advocates with the rank of major.
Thirty quartermasters with the rank of major, and forty
assistant quartermasters with the rank of captain.
Six commissaries of subsistence with the rank of major,
and twelve assistant commissaries of subsistence with the
rank of captain.
Thirty-four surgeons with the rank of major.
Thirty additional paymasters with the rank of major.
Four signal officers with the rank of major, nine signal
officers with the rank of captain, nine signal officers with
the rank of first lieutenant, and nine signal officers with
the rank of second lieutenant. Sec. 14, ibid.
549. For each Regular Army officer of a staff corps or
department who may be retained in or appointed to a
higher volunteer rank in said staff corps or department
than that actually held by him in the regular establish-
ment, there may be appointed one officer of volunteers of
the lowest grade mentioned in this section for such staff
corps or department, but no appointment shall be made
which will increase the total number of officers, Regular
and Volunteer, serving in any grade, above the number
authorized by this Act. Ibid.
550. All the volunteer staff officers herein authorized to
be appointed or retained in the service shall be honorably
discharged on July first, nineteen hundred and one, or
sooner if their services are no longer required. Ibid.
551. All officers herein authorized shall be appointed by
the President, by and with the advice and consent of the
Senate. Ibid.
The same.
Ibid.
Discharge.
Ibid.
Appointment.
Ibid.
MUSTER-OUT AND DISCHARGE.
Method.
Sec. 15, ibid.
552. The officers and enlisted men of the Volunteer Army
shall be mustered out of the military service of the United
1 Section 15 of the act of March 2, 1899, contained the requirement " that the Presi-
dent is authorized to enlist temporarily in service for absolutely necessary purposes
in the Philippine Islands volunteers, officers, and men, individually or by organiza-
tion, now in those islands and about to be discharged, provided their retention shall
not extend beyond the time necessary to replace them by troops authorized to be
maintained under the provisions of this act and not beyond a period of six months."
MILITARY LAWS OF THE UNITED STATES. 203
States and discharged as provided in the act of April
twenty-second, eighteen hundred arid ninety-eight.1 Sec.
15, ibid.
553. Each and every provision of this act shall continue Reduction.
in force until July first, nineteen hundred and one; and
on and after that date all the general, staff, and line offi-
cers appointed to the Army under this act shall be dis-
charged and the numbers restored in each grade to those
existing at the passage of this act, and the enlisted force
of the line of the Army shall be reduced to the number as
provided for by a law prior to April first, eighteen hun-
dred and ninety-eight, exclusive of such additions as have
been, or may be, made under this act to the artillery,
and except the cadets provided for by this act who may
be appointed prior to July first, nineteen hundred and
one: And provided further, That no officer who has been,
or may be, promoted under existing law, or under the
rules of seniority, shall be disturbed in his rank. Ibid.
554. Any officer of volunteers, and any enlisted man of c^^1 p?egi-
either regulars or volunteers, who was discharged in them^-8 1901 y
Philippine Islands and there reentered the service, through 31» p-762-
commission or enlistment, in the Thirty -sixth or Thirty-
seventh Regiments United States Volunteer Infantry, or
in the Eleventh Regiment United States Volunteer Cav-
alry, shall, when discharged, except by* way of punish-
ment for an offense, receive for travel allowances, from
the place of his discharge to the place in the United States
of his last preceding appointment or enlistment, four cents
per mile: Provided, That for sea travel, on discharge,
from or between our island possessions actual expenses
only shall be paid to officers, and transportation and sub-
sistence only shall be furnished enlisted men: Provided
further, That officers and enlisted men discharged in the
United States under the provisions of this act shall not
be entitled to transportation or travel allowance back to
the Philippine Islands. Act of February 8, 1901 (31 Stat.
Z., 762).
HISTORICAL NOTE. — The military establishment at the organization of the Govern-
ment under the Constitution contained no officer of higher rank than lieutenant-
colonel. Authority was conferred by the act of March 3, 1791 (1 Stat. L., 222), to
appoint a major-general and a brigadier-general, should the President deem that
course necessary, and, by the act of March 28, 1792 (ibid., 246), the number of
1 See paragraph 535, ante. For statutes conferring extra pay on officers and enlisted
men of volunteers, on muster out or discharge, see acts of January 12, 1899 (30 Stat.
L., 784), paragraphs 536 and 538, ante; March 3, 1899 (ibid., 1073), paragraph 537,
ante; and May 26, 1900 (31 ibid., 217), paragraph 539, ante. For statutes regulating
travel pay of enlisted men discharged by order of the Secretary of War see the act 01
June 6, 1900 (31 ibid., 708), paragraph 541, ante.
204 MILITAEY LAWS OF THE UNITED STATES.
brigadier-generals was to be increased to four, if, in the opinion of the President,
such appointments would " be conducive to the good of the public service." This
authority was withdrawn, however, by section 3 of the act of May 30, 1796 ( ibid. , 483) .
The number of brigadier-generals was reduced to one, and the office of major-general
was abolished by the act of March '3, 1797 (ibid., 507). The act of May 28, 1798
(ibid., 558), passed in contemplation of war with France, conferred authority upon
the President to appoint a lieutenant-general and a suitable number of major-generals ;
by section 3 of the act of July 16, 1798 (ibid., 604), the number of major-generals so
appointed was restricted to two, and the number of brigadier-generals to four. The
grade of lieutenant-general was abolished and replaced by that of General of the
Armies of the United States, by section 9 of the act of March 3, 1799 (ibid., 752).
The difficulties with France having been put in the way of settlement, recruiting was
suspended until the further order of Congress by the act of February 20, 1800
(2 ibid., 7); military appointments were authorized to be suspended by the act of
May 14, 1800 (ibid., 85), and at the reduction of 1802, the number of general officers
was reduced to one brigadier-general. Section 3, act of March 16, 1802, 2 ibid., 132.
During the controversy with Great Britain which culminated in the war of 1812,
the appointment of two additional brigadier-generals was authorized by section 3
of the act of April 12, 1808 (2ibid., 481); by the act of December 24, 1811 (ibid., 669),
the existing military establishment was ordered to be immediately completed, and
by section 4 of the act of January 11, 1812 (ibid., 671), two major-generals and four
brigadier-generals were authorized. By the act of February 24, 1813 (ibid., 801),
six major-generals and six brigadier-generals were authorized in addition to those
already in service. The act of March 3, 1815 (3 ibid., 224), fixing the military peace
establishment, reduced the number of major-generals to two and the number of
brigadier-generals to four; at the general reduction of 1821 these numbers were
fixed at one and two, respectively (section 5, act of March 2, 1821, ibid., 615), at
which number it remained until the outbreak of hostilities with Mexico in 1846.
The act of May 13, 1846 (9 Stat. L., 9), providing for the prosecution of the exist-
ing war with Mexico, authorized the acceptance of 50,000 volunteers, and conferred
power upon the President to organize the forces thus provided into divisions and
brigades, and to apportion the general and staff officers among the respective States
and Territories as he might deem proper. One major-general and two brigadier-
generals, in addition to those already authorized by law, were added to the establish-
ment by the act of June 13, 1846 (ibid., 17), with the proviso that the number of
general officers was to be reduced to that existing at the outbreak of hostilities upon
the termination of the war " by a definitive treaty of peace." With a view to deter-
mine the number of general officers to be appointed under the act of May 13, 1846,
it was provided by the act of June 26, 1846 (ibid., 20), that brigades of volunteer
troops should consist of not less than three regiments and divisions of not less than
two brigades; and any reduction in the strength of the volunteer forces was to involve
a corresponding reduction in the number of general officers, all of whom were to
be mustered out at the close of the war. By the act of March 3, 1847 (ibid., 184)
two major-generals and three brigadier-generals were authorized for the period of
the war. The reduction at the close of the war was accomplished by a proviso
in the act of July 19, 1848 (ibid., 247), which required that vacancies occurring in
the grade of general officer, should not be filled until the numbers of major and
brigadier general had been reduced to one and two, respectively.
At the outbreak of the war of the rebellion the President, by proclamations, dated
April 15, 1861 (12 Stat. L., 1258), and May 3, 1861 (ibid., 1260), called forth a force
of 75,000 militia and 42,034 volunteers; and Congress, by the act of July 22, 1861
(ibid. 268), authorized the enlistment of 500,000 volunteers, and made provision for
their organization into brigades and divisions, and for the appointment of such num-
bers of general officers as were necessary to their command. By section 4 of the
same act the President was authorized to select six major-generals and eighteen brig-
adier-generals from the line or staff of the Army, and the officers so appointed were
allowed to retain their army rank. The number of general officers of volunteers was
fixed by the act of July 5, 1862 (ibid., 506), which restricted the number of major-gen-
erals to forty and the number of brigadier-generals to two hundred. By section 9 of
the act of July 28, 1866 ( 14 ibid. , 333 ) , the number of major-generals in the regular estab-
lishment was fixed at five and that of brigadier-generals at ten ; by section 3 of the act of
March 3, 1869 (15 ibid., 318), the number of brigadier-generals was reduced to eight;
and by section 8 of the act of July 15, 1870 ( 16 ibid. , 318) , the number was still further
reduced to six and that of major-generals to three.
CHAPTER XII.
GENERAL OFFICERS, AIDS, AND MILITARY SECRETARIES.
Par.
558. Discontinuance of the office of Gen-
eral.
559. Appointment of general officers.
560. The same.
1866, c. 299, s. 9,
v. 14, p. 333; Feb.
Sec. 1097, R. S.
ISGI c
Par.
555. General officers.
556. Aids to the Lieutenant-General.
557. Aids to major-generals and to brig-
adier-generals.
555. From and after the approval of this act the Army
of the United States shall consist of one Lieutenant- 81
General, six major-generals, fifteen brigadier-generals.
Act of February 2, 1901 (31 Stat. Z., 748).
556. The Lieutenant-General may select from the Army G
two aids and one military secretary, who [shall] have
rank of lieutenant-colonel of cavalry while serving on his H: s
Staff. l
27, 1877, c. 69, v. 19, p. 241.
557. Each major-general shall have three aids, who may
be selected by him from captains or lieutenants of
Army, and each brigadier-general shall have two aids, who llo-
may be selected by him from lieutenants of the Army.2 c- 1||' *• 9>v- 14-
"Sec.'l098, B.S.
1 The personal staff of the Lieutenant-General was established by section 5 of the
act of May 28, 1798 (1 Stat. L., 558), and consisted of four aids and two military
secretaries, each of whom was to have the rank, pay, and emoluments of a lieutenant-
colonel; the same establishment was allowed to General Scott when the grade of
Lieutenant-General was revived and conferred, by brevet, upon that officer under
the authority contained in joint resolution No. 9, of February 15, 1855 (10 ibid.,
723). By section 16 of the act of March 3, 1857 (11 ibid., 205), the number of
officers on the personal staff of the Lieutenant-General in time of peace was restricted
to two aids and one military secretary, with the rank and pay of lieutenant-colonels
of cavalry. When the grade of Lieutenant-General was revived by the act of
February 29, 1864 (13 ibid., 11), the personal staff as established by the act of May
28, 1798, was authorized; by section 2 of the act of July 28, 1866 (14 ibid., 223), the
staff of that officer was fixed at two aids and a military secretary. These officers
were to be selected by detail from the Army and were to have, while so detailed,
the rank, pay, and emoluments of lieutenant-colonels of cavalry.
2 Section 5 of the act of March 2, 1821 (3 Stat. L., 615), contained the require-
ment that aids to major and brigadier generals should be appointed, by selection,
from the subalterns of the Army. By section 8 of the act of June 18, 1846 (9 ibid. , 17) ,
captains were made eligible for selection as aids to major-generals. A major-gen-
eral is allowed by law three aids, to be taken from captains or lieutenants of the
Army. A brigadier-general is allowed two, to be taken from the lieutenants of
the Army. An officer assigned to duty in accordance with his brevet rank as major-
general or brigadier-general may, with the special sanction of the War Department,
be allowed the aids of the grade. General officers may select their aids from officers
205
206 MILITARY LAWS OF THE UNITED STATES.
an^escofnoffic£ 558- When a vacancy occurs in the office of General1
LieSeSlrnt-Gennd- * * * such office shall cease and all enactments creating
er|ec.i2i7,R.s. or regulating such office shall * * * be held to be
repealed.2
serving in their commands, subject to the restrictions herein prescribed, but appoint-
ments as aids of officers serving without such limits must receive the approval of the
Secretary of War. An officer will be appointed aid to a general officer only after he
shall have actually served with troops for at least three of the five years immediately
preceding such appointment. He will hold such appointment for no longer a period
than four years, except that, upon the request of a general officer whose retirement
by reason of age will occur within one year, the tour of four years may be extended
by the Secretary of War to the date of such retirement. Par. 33, A. R., 1895.
For statutory provisions and executive regulations respecting the staffs of general
officers when assigned to commands see the chapter entitled RANK AND COMMAND —
TACTICAL AND TERRITORIAL ORGANIZATIONS.
JThe grade of " General of the Armies of the United. States " was created by sec-
tion 9 of the act of March 3, 1799 (1 Stat. L., 752). The office, though not expressly
referred to in any of the acts for the reduction or disbandment of the forces raised
in contemplation of war with France, ceased to exist in 1802, not having been men-
tioned in the act of March 16, 1802 (2 ibid., 132), which determined the military
peace establishment. The grade was revived under the title of "General of the
Army of the United States," by the act of July 25, 1866 (14 ibid., 223), and was con-
ferred upon Lieutenant-General Grant; and was recognized and continued by sec-
tion 9 of the act of July 28, 1866 (ibid., 333). Section 6 of the act of July 15, 1870
(16 ibid., 318) , contained the requirement, however, that "the offices of General and
Lieutenant-General shall continue until a vacancy shall exist in the same, and no
longer, and when such vacancy shall occur in either of said offices immediately
thereupon all laws and parts of laws creating said office shall become inoperative,
and shall, by virtue of this act, from thenceforward be held to be repealed." The
office ceased to exist, as a grade of military rank, at the death of Gen. W. T. Sher-
man on February 14, 1891. The act of March 3, 1885 (23 ibid., 434), authorized the
appointment of a "General of the Army on the Retired List," which was conferred
upon Gen. Ulysses S. Grant, and expired on the death of that officer on July 23,
1885. By the act of June 1, 1888 (25 ibid. , 165) , the grade of Lieutenant-General was
discontinued and merged in that of General of the Army, which was conferred upon
Lieut. Gen. P. H. Sheridan, and ceased to exist at the death of that officer on August
5, 1888.
CHIEF OP STAFF.— By the act of March 3, 1865 (13 Stat. L., 500), the office of chief
of staff, with the rank of brigadier-general, was provided for the Lieutenant-General
commanding the Army. By section 2 of the act of July 25, 1866 (14 ibid., 223), that
officer was transferred to the staff of the General. The office was abolished by the
act of April 3, 1869 (16 ibid., 6) .
2 The grade of Lieutenant-General was first established by the act of May 28, 1798
(1 Stat. L., 558); it was abolished, however, by section 9 of the act of March 3, 1799
(ibid., 752), and the command of the forces authorized to be raised, in contemplation
of war with France, was vested in the "General of the Armies of the United States"
authorized by that statute. The grade was revived by joint resolution No. 9 of Feb-
ruary 15, 1855 (10 ibid., 723), and the rank was conferred by brevet on Maj. Gen.
Winfield Scott; the office thus created ceased to exist at the death of that officer on May
29, 1866. The grade was again revived by the act of February 29, 1864 (13 ibid., 11),
and conferred upon Maj. Gen. Ulysses S.* Grant, and the office was recognized and
continued by section 9 of the act of July 28, 1866 (14 ibid., 333) , but was to cease to
exist upon the occurrence of a vacancy, under the restriction imposed by section 6 of
the act of July 15, 1870 (16 ibid., 318). The office was vacated and merged in that
of General of the Army upon the promotion of Lieutenant-General Sheridan to that
grade, under the authority conferred by the act of June 1, 1888 (2o ibid., 165). It
was revived a third time by joint resolution No. 9 of February 5, 1895 (28 ibid., 968) ,
and was conferred, subject to the restriction therein contained, upon Maj. Gen. John
M. Schofield, and the office continues to exist as a grade of military rank on the
retired list. The rank, pay, and allowances of Lieutenant-General were conferred
upon "the senior major-general of the line commanding the Army" by section 2 of
the act of June 6, 1900 (31 ibid., 655); the office was revived as a grade of military
rank by section 1, act of February 2, 1901 (31 Stat. L., 748).
MILITARY LAWS OF THE UNITED STATES. 207
559. The President of the United States is hereby xppomtment
authorized to select from the brigadier-generals of volun- cLsgei
teers two volunteer officers, without regard to age, and, 33, v. si,' p. 756. s'
by and with the advice and consent of the Senate, appoint
them brigadier-generals, United States Army, for the
purpose of placing them on the retired list. Sec. 33, act
of February 2, 1901 (31 Stat. L., 756).
560. And the President is also hereby authorized to The same,
select from the retired list of the Army an officer not
above the rank of brigadier-general who may have dis-
tinguished himself during the war with Spain, in com-
mand of a separate army, and to appoint, and, by and with
the advice and consent of the Senate, the officer so selected
to be major-general, United States Army, with the pay
and allowances established by law for officers of that grade
on the retired list. . Ibid.
CHAPTER XIII.
RANK AND COMMAND— TACTICAL AND TERRITORIAL
ORGANIZATIONS.
Par.
551. Command, detachments.
562. The same, regular and volunteer
officers.
563. Officers of militia.
564. Relative rank, army and navy offi-
cers.
565. Relative rank of officers, rule.
566. Brevet assignments.
Par.
567. Engineer officers.
568. Medical officers, restriction.
569. Pay officers, restriction.
570. Tactical organizations.
571. The same, time of war.
572. Clerks and messengers.
573. The same assignment.
574. Military headquarters.
Command,
when different
561. If, upon marches, guards, or in quarters, different
joms happen to corps of the Army happen to join or do duty together, the
122 Art. war. officer highest in rank1 of the line of the Army, Marine
Corps, or militia, by commission, there on duty or in quar-
ters, shall command2 the whole, and give orders for what
*The terms "rank" and "command" have received executive interpretation in
paragraphs 7 and 13 of the Army Regulations of 1901.
Military rank is that character or quality bestowed on military persons which
marks their station and confers eligibility to exercise command or authority in the
military service within the limits prescribed by law. It is divided into degrees or
grades, which mark the relative positions and powers of the different classes of per-
sons possessing it. Par. 7, A. R., 1901.
Rank is generally held by virtue of office in a regiment, corps, or department, but
may be conferred independently of office, as in the case of retired officers and of those
holding it by brevet. Par. 8, A. R., 1901.
A determination by the legislative and executive branches of the Government, as
to the relation or superior authority among military officers, is conclusive upon the
judiciary. De Celis v. U. S., 13 Ct. Cls., 117.
The following are the grades of rank of officers and noncommissioned officers:
1. Lieutenant-general.
2. Major-general.
3. Brigadier-general.
4. Colonel.
5. Lieutenant-colonel.
6. Major.
7. Captain.
8. First lieutenant.
9. Second lieutenant.
10. Veterinarian, cavalry and artillerv.
11. Cadet.
12. Sergeant-major, regimental, and ser-
geant-major, senior grade, artillery
corps.
13. Quartermaster-sergeant, regimental.
14. Commissary-sergeant regimental.
15. Ordnance sergeant, post commissary-
sergeant, post quartermaster-ser-
geant, electrician sergeant, hospital
steward, first-class sergeant Signal
Corps, chief musician, chief trum-
peter, and principal musician.
16. Squadron and battalion sergeant-
major and sergeant-major, junior
grade, artilllery corps.
17. First sergeant and drum-major.
18. Sergeant and acting hospital steward.
19. Corporal.
In each grade, date of commission, appointment, or warrant determines the order
of precedence. (Par. 9, Army Regulations of 1901.)
2 Command is exercised by virtue of office and the special assignment of officers
holding military rank who are eligible by law to exercise command. Without orders
208
• MILITARY LAWS OF THE UNITED STATES. 209
is needful to the service, unless otherwise specially directed
b}^ the President, according to the nature of the case. One
hundred and twenty-second article of war.
562. In all matters relating to the rank, duties, and rights
of officers, the same rules and regulations shall apply to^ti°nng
officers of the Regular Army and to volunteers commis- ^a'r^'ise? c
sioned in, or mustered into said service, under the laws of J|^8-2' v- 14> P-
the United States, for a limited period. One hundred and 123 Art- War-
twenty-third article of war.
563. Officers of the militia of the several States, when
called into the service of the United States, shall on
detachments, courts-martial, and other duty wherein they f°Ma?' 2 ise? c
may be employed in conjunction with the regular or volun- JjjjJ1 s- 2> v- 14> p-
teer forces of the United States, take rank next after all 124 Art* War*
officers of the like grade in said regular or volunteer forces,
notwithstanding the commissions of such militia officers
may be older than the commissions of the said officers of
the regular or volunteer forces of the United States. One
hundred and twenty -fourth article of war.
564. The relative rank between officers of the Navy,
whether on the active or retired list, and officers of the
Army shall be as follows, lineal rank only being consid- J||: ^> J ^yj-
c. 6, s.i, v. is, p.'
420; July 25, 1866,
The Vice- Admiral shall rank with the Lieutenant-Gen- ^fVaJ.'l'isb?;
' C.174,s.l,v.i4,pp.
515, 516; Mar. 3,
Rear-admirals with major-generals. 18SecVi466PE4?s'
from competent authority an officer can not put himself on duty by virtue of his
commission alone, except as contemplated in the twenty-fourth and one hundred
and twenty-second articles of war. Par. 13, A. R., 1901.
The following are the commands appropriate to each grade:
1. For a captain, a company.
2. For a major or lieutenant-colonel, a battalion or squadron.
3. For a colonel, a regiment.
4. For a brigadier-general, two regiments.
5. For a major-general, four regiments. Par. 14, A. R., 1901.
The functions assigned to any officer in these regulations by title of office devolve
upon the officer acting in his place, except when otherwise specified. An officer in
temporary command shall not, except in urgent cases, alter or annul the standing
orders of the permanent commander without authority from the next higher com-
mander. Par. 15, A. R., 1901.
An officer who succeeds to any command or duty stands in regard to his duties in
the same situation as his predecessor. The officer relieved will turn over to his suc-
cessor all orders in force at the time and all the public property and funds pertaining
to his command or duty, and will receive therefor duplicate receipts showing the
condition of each article. Par. 16, A. R., 1901.
When an officer is charged with directing an expedition or making a reconnois-
sance, without haying command of the escort, the commander of the escort will
consult him touching all arrangements necessary to secure the success of the opera-
tion. Par. 19, A. R., 1901. For statutory provisions respecting the exercise of com-
mand by staff officers see the chapter called THE STAFF DEPARTMENTS. See, also, para-
graphs 17 and 18, A. R., 1901.
22924—08 - 14
210 MILITARY LAWS OF THE UNITED STATES.
Commodores 1 with brigadier-generals.
Captains with colonels.
Commanders with lieutenant-colonels.
Lieutenant-commanders with majors.
Lieutenants with captains.
Lieutenants, junior grade, with first lieutenants.2
Ensigns with second lieutenants.
Relative rank, 565. In fixing relative rank8 between officers of the same
howdetermmed.
MM. 2, we?, c. grade and date of appointment and commission, the time
1219 B s eacn mav nave actually served as a commissioned
officer of the United States, whether continuously or at
different periods, shall be taken into account. And in
computing such time, no distinction shall be made between
service as a commissioned officer in the Regular Army and
service since the 19th day of April, 1861, in the volunteer
forces, whether under appointment or commission from the
President or from the governor of a State.
566> Omcers may be assigned to duty or command accord-
tosec? ill™ i£s. *n£ to fckeir brevet rank by special assignment of the Pres-
ident; and brevet rank shall not entitle an officer to
precedence or command except when so assigned.
wri8 transfer6 ^f ^' Engineers shall not assume nor be ordered on any
ei^reio8i806 c duty beyond the line of their immediate profession, except
20^art. 63, v. 2,' p. ^y the Special order of the President.* They may, at the
sec. 1108, B.S. discretion of the President, be transferred from one corps
to another, regard being paid to rank.
1 The office of commodore, as a grade of rank on the active list of the Navy, was
abolished by section 7 of the act of March 3, 1899 (30Stat. L., 1005); that statute
also contained the requirement that ' * each rear-admiral embraced in the nine lower
numbers of the grade shall receive the same pay and allowance as are now allowed a
brigadier-general in the Army."
2 The office of lieutenant, junior grade, was created by the act of March 3, 1883
(22 Stat. L., 442), replacing that of master in the Navy, which was discontinued by
that statute.
3 Officers of the Regular Army, Marine Corps, and volunteers when commissioned
or mustered into the service of the United States, being upon equal footing, take pre-
cedence in each grade by date of commission or appointment. Militia officers, when
employed with the regular or volunteer forces of the United States, take rank next
after all officers of like grade in those forces. Par. 10, A. R., 1901.
Between officers of the same grade and date of appointment or commission, other
than through promotion by seniority, relative rank is determined by length of serv-
ice, continuous or otherwise, as a commissioned officer of the United States, either in
the Regular Army or, since April 19, 1861, in the volunteer forces. When periods
of service are equal, precedence will, except when fixed by order of merit on exam-
ination, be determined, first, by rank in service when appointed; second, by former
rank in the Army or Marine Corps; third, by lot, among such as have not been in
the military service of the United States. Par. 11, A. R., 1901.
4 An officer of engineers or ordnance, or of the Adjutant-General's, Inspector-
General's, Judge- Advocate-General's, Quartermaster's, or Subsistence Department,
or of the Signal Corps, though eligible to command, according to his rank, shall not
assume command of troops unless put on duty under orders which specially so direct,
byauthority of the President. Par. 17, A. R., 1901.
MILITAEY LAWS OF THE UNITED STATES. 211
568. Officers of the Medical Department of the
all not be entitled, in virtue of
in the line or in other staff corps.1
shall not be entitled, in virtue of their rank, to command P18^ in line or
in other staff de-
B s
569. Officers of the Pay Department shall not be entitled, tommatdTn
in virtue of their rank, to command in the line or in other li,ne-orjln otner
staff depart-
staff corps.1 mfenc?im,B.S.
TACTICAL ORGANIZATIONS.
570. In the ordinary arrangement of the Army two regi
ments of infantry or of cavalry shall constitute a brigade,
and shall be the command of a brigadier-general, and two £P^> ]$98> s- 9«
brigades shall constitute a division, and shall be the com- Sec. 1114, R.S.
mand of a major-general; but it shall be in the discretion
of the commanding general to vary^ this disposition when-
ever he may deem it proper to do so.2
571. In time of war, or when war is imminent, the troops ti^ar or?aniza-
in the service of the United States, whether belonging to9 vP3b^' 3628'8'
the Regular or Volunteer Army or to the militia, shall be
organized, as far as practicable, into divisions of three
brigades, each brigade to be composed of three or more
regiments; and whenever three or more divisions are
assembled in the same army the President is authorized to
organize them into army corps, each corps to consist of
not more than three divisions. Sec. 9, act of April 22,
1898(30 Stat. L.,362).
CLERKS AND MESSENGERS.3
572. For pay to clerks and messengers: * * * Five
clerks at one thousand eight hundred dollars each per 31Mpar89|
annum. * Ten clerks at one thousand six hun-
1 An officer of the Pay or Medical Department can not exercise command, except
in his own department; but by virtue of his commission he may command all
enlisted men like other commissioned officers. (Par. 18, A. R., 1901.)
2 Paragraph 189 of the Army Regulations of 1895 contains the provision that, in time
of peace, army corps, divisions, and brigades will not be formed except for purposes
of instruction. Section 9 of the act of July 17, 1862 (12 Stat. L., 594), authorized
the President to establish and organize army corps according to his discretion. Sec-
tion 10 of the same act provided for the staff of an army corps. Such legislation was
not necessary, however, the organization of separate armies, army corps, grand divi-
sions, wings, reserves, and the like, in time of war, being a matter within the discre-
tion of the President as the Commander in Chief. For regulations respecting the
organization of armies in the field in time of war, see the volume entitled TROOPS IN
CAMPAIGN; see, also, Scott's Dig., pp. 244, 245. For the war organization of the
military forces of the United States, see next paragiaph.
3 The clerks and messengers above referred to and provided for were first author-
ized by the Act of August 6, 1894 (28 Stat. L., 236); they replace the force of "Gen-
eral service clerks and messengers" created by the act of July 29, 1886 (24 Stat. L.,
167) , but discontinued by the act of August 6, 1894 (28 Stat. L., 233). Their num-
bers and compensation are determined in the annual acts of appropriation for the
support of the Army.
212 MILITARY LAWS OF THE UNITED STATES.
dred dollars each per annum. * * * Twenty-five
clerks at one thousand four hundred dollars each per
annum. Sixty-five clerks at one thousand two
hundred dollars each per annum. * * * Eighty-six
clerks at one thousand dollars each per annum. Sixty-
eight messengers at seven hundred and twenty dollars each
per annum. Act of March 2, 1901 (31 Stat. L., 899).
Employment 573. And said clerks and messengers shall be emploved
ana assignment. ° *
and assigned by the Secretary of War to the offices and
positions in which they are to serve. Ibid.
MILITARY HEADQUARTERS.
quarters7 head~ ^4< When ^e economy of the service requires, the
v J2ine 35' 1879> ^ecre^ary °f War shall direct the establishment of military
headquarters at points where suitable buildings are owned
by the Government.1 Act of June %3, 1879 (21 Stat.
L., 35).
TERRITORIAL COMMANDS.
In time of peace our army has been habitually distributed into geographical com-
mands, styled, respectively, military divisions, departments, and districts — the dis-
tricts, as organized prior to 1815, corresponding to the commands now designated as
departments. These divisions and departments can be established only by the
President; but, within their respective departments, commanding generals have from
time to tune grouped adjacent posts into temporary commands, which are now
known as districts.
Military divisions, each embracing two or more departments, have obtained from
May 17, 1815, to June 1, 1821; from May 19, 1837, to July 12, 1842; from April 20,
1844, to October 31, 1853; from July 25 to August 17, 1861; and from October 13,
1863, to July 2, 1891.
Department organizations have been continuous since 1815. ( o) Scott' s Dig. , p. 244.
THE COMMANDING GENERAL OF THE ARMY.
The command exercised by the commanding general of the Army, not having
been 'made the subject of statutory regulation, is determined by the order of assign-
ment. It has been habitually composed of the aggregate of the several territorial
commands that have been or may be created by the President.
The military establishment is under the orders of the commanding general of the
Army in that which pertains to its discipline and military control. The fiscal affairs
of the Army are conducted by the Secretary of War, through the several staff depart-
ments. Par. 205, A. R., 1901.
All orders and instructions from the President or Secretary of War relating to
military operations or affecting the military control and discipline of the Army will
be promulgated through the commanding general. Par. 206, A. R., 1901. See,
also, paragraph 11, ante.
TERRITORIAL DEPARTMENTS.
Territorial departments are established and their commanders assigned by direc-
tion of the President. In time of peace, army corps, divisions, or brigades will not
be formed except for purposes of instruction. Par. 189, A. R., 1895.
The commander of a department commands all the military forces of the Govern-
ment within its limits, whether of the line or staff, which are not specially excepted
a Section 6 of the act of June 18, 1878 (2u Stat. L., 150), contained the requirement that thereafter,
"in time of peace, all military headquarters, except Army headquarters, shall be established and
maintained at points where the Government own buildings or barracks, within the several depart-
ments and divisions, and in such buildings or barracks, and not otherwise, unless the Secretary of
War shall, by an order in writing, otherwise direct." This requirement was expressly repealed by
the act of June 23, 1879 (21 Stat. L., 35).
MILITARY LAWS OF THE UNITED STATES. 213
from his control by the War Department. The infantry and cavalry school at Fort
Leaven worth, Kans., and the cavalry and light artillery school at Fort Riley, Kans.,
in matters pertaining to the courses of instruction; the Military Academy; the artil-
lery school; the engineer establishment at Willets Point; the arsenals; the general
depots of supply; the general-service recruiting stations; such permanent fortifica-
tions as may be in process of construction or repair, and officers employed on special
duty under the Secretary of War, are exempted from the supervision of department
commanders. But when an emergency demands it, all military men and material
within the limits of their jurisdiction come under their control. Par. 208, A. R.,
1901.
Purchasing commissaries, officers on duty at general depots of supply, and others
indicated in the preceding paragraph, whether reporting by letter to department
commanders or not, are subject to their orders for court-martial or other duty in an
emergency only; and officers on duty with the commands at Fort Leavenworth, Fort
Monroe, and Fort Riley will not be detached without the orders of the Secretary of
War or the commanding general of the Army. Par. 209, A. R., 1901.
A department commander is charged with the administration of all the military
affairs of his department, and the execution of all orders from higher authority. He
will report to the commanding general of the Army all matters relating to the gen-
eral welfare of his command, including such change of station of troops as he may
deem desirable, but will obtain the approval of the commanding general of the Army
before ordering the movement. If it be necessary to move troops to meet emergen-
cies, such movements and all the circumstances will be reported at the earliest
possible moment. Par. 210, A. R., 1901.
Each department commander will inspect the troops under his command at least
once each year, and for this purpose he may be accompanied by one officer of his per-
sonal or the department staff. He will assure himself by personal examination and
observation that all officers and men under his control are efficient in the performance
of duty, that the troops are thoroughly drilled and instructed in their field duties
and tactical exercises, that supplies are properly distributed, that proper care is
exercised in the purchase and preservation of public property, and that strict econ-
omy is exercised in all public expenditures. In his annual report the results of these
inspections will be summarized. From time to time he will report, for the informa-
tion of the commanding general of the Army and the Secretary of War, the names
of any and all officers belonging to his command who are believed to be incompetent
or permanently unable, from any cause, to perform all the duties of their several
grades, both in garrison and in active service; he will also report any errors, irregu-
larities, or abuses requiring the action of higher authority. Par. 211, A. R., 1901.
Department commanders are expected to determine controversies arising within the
limits of their jurisdiction and decide questions referred to them on appeal. Par.
212, A. R., 1901.
Although a department commander may continue to discharge the more important
functions of his command while beyond its territorial limits, his absence therefrom
requires the sanction of the Secretary of War, and if intending to leave his headquar-
ters for an absence within his department, he will report to the Adjutant-General of
the Army his intention, the duration of, and his address during, his proposed absence.
Par. 195, A. R., 1895.
STAFF OF DEPARTMENT COMMANDERS.
The personal staff of a department commander will consist of the authorized aids.
The department staff will be limited to the officers detailed by the Secretary of War
from appropriate staff departments or corps, or of officers of the line detailed by the
same authority to act in their stead, and their official designations will be as follows:
Adjutant-general, chief quartermaster, chief commissary, chief surgeon, chief pay-
master, judge-advocate, and artillery inspector, the last appointed as prescribed in
paragraph 350; also, when necessary, an engineer officer, an ordnance officer, and a
signal officer, each detailed from his corps; but when any of these officers are not
assigned, or when any department staff officer is temporarily absent or disabled, the
duties of his position will be performed by other members of the department or per-
sonal staff. The chief quartermaster and chief commissary will each have charge of
the depot of his department, at the place where headquarters are located, and will,
when practicable, make purchases. The chief surgeon will, when practicable, per-
form the duty of attending surgeon. The chief paymaster will make a proportion of
the payments in the command. The duties prescribed in Small-Arms Firing Regula-
tions for the inspector of small-arms practice will be performed by an aid or by the
adjutant-general. Par. 214, A. R., 1901.
UNIVERSITY )
OF
CHAPTER XIV.
THE STAFF DEPARTMENTS— GENERAL PROVISIONS— DIS-
BURSING OFFICERS.
Par.
575-577. Heads of departments, appoint-
ment and detail.
578. Appointments to the staff.
579-582. Details to the staff; promotions.
583-588. Examinations for promotion.
589-590. Transfers to the staff.
591. Promotion after fourteen years serv-
ice.
592-605. Disbursing officers; bonds.
606-610. Deposit and safe-keeping of
public moneys.
611-616. Proceeds of sales.
617-624. Disbursements.
625-626. Inspection of disbursements.
Par.
627. Decision by Comptroller in advance
of payment.
628. Assignment of claims; powers of
attorney.
629. Counterfeit money.
630. Presentation of drafts.
631. Lost checks, duplicate checks.
632-635. Accounts and accounting.
636-641. Rendition of accounts.
642. Revision of accounts.
643. Suits for the recovery of money.
644-661. Miscellaneous offenses in con-
nection with public money.
HEADS OF DEPARTMENTS;1 APPOINTMENTS AND DETAILS.
Vacancies.how
filled.
Feb. 2, 1901, s.
26, v. 31, p. 755.
The same, re-
striction.
Ibid.
The same, re-
tirement.
Ibid.
575. When vacancies shall occur in the position of chief
of any staff corps or department the President may appoint
to such vacancies, by and with the advice and consent of
the Senate, officers of the Army at large not below the
rank of lieutenant-colonel, and who shall hold office for
terms of four years. When a vacancy in the position of
chief of any staff corps or department is filled by the
appointment of any officer below the rank now provided
by law for said office, said chief shall, while so serving,
have the same rank, pay, and allowances now provided
for the chief of such corps or department. Sec. ##, act
of February 2, 1901 (31 Stat. Z., 755).
576. So long as there remain in service officers of any
staff corps or department holding permanent appoint-
ments, the chief of such staff corps or department shall
be selected from the officers so remaining therein. IMd.
577. Any officer now holding office in any corps or de-
partment, who shall hereafter serve as chief of a staff
*For the requirement of section 1132 of the Revised Statutes, authorizing the Presi-
dent to designate officers of the several staff departments to perform the duties of
chiefs of department during the absence of the heads thereof, see paragraph 121, ante.
214
MILITARY LAWS OF THE UNITED STATES. 215
corps or department and shall subsequently be retired,
shall be retired with the rank, pay, and allowances author-
ized by law for the retirement of such corps or depart-
ment chief. Ibid.
APPOINTMENTS.
578. Appointments to fill original vacancies in the low- Ma??hnt2mi9oi'
est grade in the Adjutant-General's Department, the v- 81» P» 90^>-
Inspector-General's Department, and Judge Advocate-
General's Department, and in the grade of captain in the
Quartermaster's Department, Subsistence Department,
and Pay Department may be made from officers of vol-
unteers commissioned since April twenty-first, eighteen
hundred and ninety-eight, and the age limit prescribed as
to chaplains shall not apply to persons who served as
chaplains of volunteers after said date who were under
forty-two years of age when originally appointed. Act
of March 0, 1901 (31 Stat. Z., 900).
DETAILS TO THE STAFF; PROMOTIONS.
579. That so long as there remain any officers holding yebm2tii9oi a
permanent appointments in the Adjutant-General's De- 26> v- 31» p> 755-
partment, the Inspector-General's Department, the Quar-
termaster's Department, the Subsistence Department, the
Pay Department, the Ordnance Department, and the Sig-
nal Corps, including those appointed to original vacancies
in the grades of captain and first lieutenant under the pro-
visions of sections sixteen, seventeen, twenty-one, and
twenty-four of this act, they shall be promoted according
to seniority in the several grades, as now provided by law,
and nothing herein contained shall be deemed to apply to
vacancies which can be filled by such promotions or to the
periods for which the officers so promoted shall hold their
appointments. Sec. 26, act of February 2, 1901 (31 Stat.
Z., 755).
580. When any vacancy, except that of the chief of the
department or corps, shall occur which can not be filled
by promotion as provided in this section, it shall be filled
by detail from the line of the Army, and no more perma-
nent appointments shall be made in those departments or
corps after the original vacancies created by this act shall
have been filled. Such details shall be made from the
grade in which the vacancies exist, under such system of
examination as the President may from time to time pre-
scribe. Ibid.
216
MILITARY LAWS OF THE UNITED STATES.
Vacancies in
line.
581. All officers so detailed shall serve for a period of
four years, at the expiration of which time they shall re-
turn to duty with the line, and officers below the rank of
lieutenant-colonel shall not again be eligible for selection
in any staff department until they shall have served two
years with the line. Ibid.
582. Each position vacated by officers of the line trans-
sec. 27, ibid, f erred to any department of the staff for tours of service
under this act shall be filled by promotion in the line until
the total number detailed equals the number authorized for
duty in such department. Thereafter vacancies caused by
details from the line to the staff shall be filled by officers
returning from tours of staff duty. If under the opera-
tion of this act the number of officers returned to any par-
ticular arm of the service at any time exceeds the number
authorized by law in any grade, promotions to that grade
shall cease until the number has been reduced to that
authorized. Sec. 27, ibid.
EXAMINATIONS FOR PROMOTION.1
Par.
583. Examinations.
584. Failure to pass.
585. Examination of appointees from
civil life.
Par.
586. The same, waiver of privilege.
587. Examination of engineer and ord-
nance officers.
588. Promotion of absent officer.
forEprao^oUonns 583' That the President be, and he is hereby, authorized
v ^ p' 562°' s' 3> t° prescribe a system of examination of all officers of the
Army below the rank of major to determine their fitness
^ee, also, section 1 of the act of October 1, 1890 (26 Stat. L., 252). So much of
section 1194, Revised Statutes, as prohibited appointments and promotions in the
Adjutant-General's, Inspector-General's, Pay, Quartermaster's, Subsistence, Ord-
nance, and Medical Departments was repealed; as to the Adjutant-General's Depart-
ment, by the act of March 3, 1875 (18 Stat. L., 478); as to the Inspector-General's
Department, by the act of June 23, 1874 (18 Stat. L., 244); as to the grade of major
in the Pay Department, by the act of March 3, 1875 (18 Stat. L., 524), and the act
of March 3, 1877 (19 Stat. L., 270); as to the Quartermaster's Department, by the
act of March 3, 1875 (18 Stat. L., 338); as to the Ordnance, Subsistence, and Medical
Departments, by section 8 of the act of June 23, 1874 (18 Stat. L., 245). The act of
March 3, 1877 (19 Stat, L., 270), declared that this section "now applying only to
the grades in the Pay Department of the Army above the rank of major is hereby
repealed" (19 Stat. L., 270).
The act of June 23, 1874, contained the provision that as vacancies shall occur in
any of the grades of the Ordnance and Medical Departments, no appointments shall
be made to fill the same until the numbers in such grade shall be reduced to the
numbers which are fixed for permanent appointments by the provisions of this act;
and thereafter the number of permanent officers in said grades shall continue to con-
form to said reduced numbers, and all other grades in said Ordnance and Medical
Departments than those authorized by the provisions of this act shall cease to exist
as soon as the same shall become vacant by death, resignation, or otherwise; and no
appointment or promotion shall hereafter be made to fill any vacancy which may
occur therein.
The same statute also provided that no officer now in the service shall be reduced
in rank or mustered out by reason of any provision of law herein made reducing the
number of officers in any department or corps of the staff.
MILITARY LAWS OF THE UNITED STATES. 217
for promotion, such an examination to be conducted at
such times anterior to the accruing of the right to promo-
tion as may be best for the interests of the service: Pro-
vided^ That the President may waive the examination for
promotion to any grade in the case of any officer who in
pursuance of existing law has passed a satisfactory exami-
nation for such grade prior to the passage of this act. Sec.
3,. act of October 1, 1890 (26 Stat. Z., 662).
584. If any officer fails to pass a satisfactory examina- Retirement on
tion and is reported unfit for promotion, the officer next dueUto
below him in rank, having passed said examination, shall
receive the promotion: And provided, That should the duoct. i, isoo, s.
officer fail in his physical examination and be found inca- 8> v> 26> p' 562'
pacitated for service by reason of physical disability con-
tracted in line of duty he shall be retired with the rank to Failure for
which his seniority entitled him to be promoted; but if he °
should fail for any other reason he shall be suspended from
promotion for one year, when he shall be reexamined, and
in case of failure on such reexamination he shall be honor- Failure on re-
exammation.
ably discharged with one year s pay from the Army.
585. The examination of officers appointed in the Army Examination
,» • •* i*« tf rr> i rr> /. i of officers ap-
irom civil lite, or or omcers who were officers ot volun- pointed from
teers only, or where officers of the militia of the several . sec. s, V&«."
States called into the service of the United States, or were
enlisted men in the regular or volunteer service, either in
the Army, Navy, or Marine Corps, during the war of the
rebellion, shall be conducted by boards composed entirely composition of
of officers who were appointed from civil life or of officers
who were officers of volunteers only during said war, and
such examination shall relate to fitness for practical service
and not to technical and scientific knowledge: and in case
of failure of any such officer in the reexamination herein- Failure-
before provided for, he shall be placed upon the retired
list of the Army; and no act now in force shall be so con-
strued as to limit or restrict the retirement of officers as
herein provided for. Sec. 3, act of October 1, 1890 (26
Stat. Z., 562).
586. Officers entitled by this section to examination by officers ap-
, i j ,. , «. • , ~, pointed from
a board composed entirely of officers who were appointed civil life may
j, • i i5 waive board of
rrom civil lire, or who were omcers or volunteers only similar charac-
during the war, may, by written waiver filed with the July 27, 1392, v.
War Department, relinquish such right, in which case the
examination of such officers shall be conducted by boards
composed as shall be directed by the Secretary of War.
Act of July 27, 1892 (27 Stat. Z., 276).
218 MILITAEY LAWS OF THE UNITED STATES.
587. The examination of officers of the Corps of Engi-
neers and Ordnance Department, who were officers or
I892,cv227,upy276: enlisted men in the regular or volunteer service, either in
the Army, Navy, or the Marine Corps, during the war
of the rebellion, shall be conducted by boards composed in
the same manner as for the examination of other officers
of their respective corps or department; and the examina-
tions shall embrace the same subjects prescribed for all
other officers of similar grades in the Corps of Engineers
and Ordnance Department, respectively. Sec. 2, act of
July 27, 1892 (27 Stat. Z., 276).
588. When the exigencies of the service of any officer
vould be entitled to promotion upon examination
require him to remain absent from any place where an
examining board could be convened, the President is
hereby authorized to promote such officer, subject to
examination, and the examination shall take place as soon
thereafter as practicable. If upon examination the offi-
cer be found disqualified for promotion, he shall, upon the
approval of the proceedings by the Secretary of War, be
treated in the same manner as if he had been examined
prior to promotion. Sec. 32, act of February 2, 1901 (31
Stat. Z., 756).
TRANSFERS TO THE STAFF.
J55 589. Officers may be transferred from the line to the
3 1812 s^a^ °^ the Army without prejudice to their rank or pro-
8' APT. If isle, s. m°tion in the line; but no officer shall hold, at the same
9>juneiM846>8. time> an appointment in the line and an appointment in
7>see9.'Fao6,B.s. *ke staff which confer equal rank in the Army. When
any officer so transferred has, in virtue of seniority, ob-
tained, or become entitled to, a grade in his regiment
equal to the grade of his commission in the staff, he shall
vacate either his commission in the line or his commission
in the staff.1
590. Engineers shall not assume nor be ordered on any
duty beyond the line of their immediate profession, except
Sec.ii58;n.s. ^y the special order of the President. They may, at the
discretion of the President, be transferred from one corps
to another, regard being paid to rank.
lrThe requirements of this section, since the approval of the act of February 2, 1901
(31 Stat. L., 748), apply only to transfers between officers of the line and officers
holding permanent appointments in the several departments or branches of the staff.
tween
staff.
MILITARY LAWS OF THE UNITED STATES. 219
591. When any lieutenant of the Corps of Engineers or
Ordnance Corps or Signal Corps has served fourteen years' 983 sMgr y18^3
continuous service as lieutenant, he shall be promoted to 21J M
6 Mar., lobd, c.
the rank of captain, on passing the examination provided^ss-3'4>v-12'P
by the preceding section, but such promotion shall not^2*,-^^7' c-
authorize an appointment to fill any vacancy, when such v ^Velf90'8'7
appointment would increase the whole number of officers
in the corps beyond the number fixed by law; nor shall
any officer be promoted before officers of the same grade
who rank him in his corps. Sec. 7, act of October 1, 1890 '
(26 Stat. Z.,
Par.
DISBURSING OFFICERS.
BONDS.
Par.
604. Liability of sureties.
605. Release of sureties.
592. Bonds, by whom given.
593. Increase of bonds.
594-601. Security companies as sureties.
602,603. Examination and renewal of
bonds.
592. All officers of the Quartermaster's, Subsistence, and
Pay Departments, the chief medical purveyor and assist-
ant medical purveyors, and all store-keepers shall, before^,
entering upon the duties of their respective offices, give^J
good and sufficient bonds to the United States, in such^>
sums as the Secretary of War may direct, faithfully tojfjj:
account for all public moneys and property- which they may £• 2|34. M
receive. The President may, at any time, increase theW^'JjJJJJ,
sums so prescribed. l But the Quartermaster-General shall ^ £• jgj-. *Feb
not be liable for any money or property that may come into |^ 1877> v- 19> p-
the hands of the subordinate officers of his department.2 sec. 1191, B. s.
1 For statutory requirements respecting bonds and sureties, in addition to those
cited in this chapter, see the chapters entitled THE TREASURY DEPARTMENT, THE
COURT OP CLAIMS, THE QUARTERMASTER'S DEPARTMENT, THE SUBSISTENCE DEPART-
MENT, THE PAY DEPARTMENT, THE MEDICAL DEPARTMENT, and CONTRACTS AND PUR-
CHASES. Officers of the Army and Navy are excepted from the provisions of section
3614, Revised Statutes, which require all special agents employed by the heads of
the several Executive Departments in the disbursement of the public moneys to give
bonds in such form and with such security as such heads of Departments may
approve. This section does not apply to all commissioned officers of the Army who
may be required to act as disbursing officers, but to such only as are regularly
appointed disbursing officers and who are required, as such, to give bonds. Ex parte
Randolph, 2 Brockenbrough, 447. See also U. S. v. Kirkpatrick, 9 Wh., 720; U. S.
Van Zandt, 11 Wh., 184; Dox v. Postmaster-General, 1 Pet., 325; U. S. v. Linn, 15
Pet., 290.
2 A bond to the United States, conditioned that a property and disbursing officer
of the War Department shall faithfully discharge his duties and faithfully account
for public money and property committed to his charge, takes effect on the day
220 MILITARY LAWS OF THE UNITED STATES.
bonds rease °f 593t The President is authorized, if in his opinion the
90ASU6', v.98t>66o';interest °^ the United States requires the same, to regulate
sU7yv'1i8o52pC'i2:an(^ increase the sums for which bonds are, or maybe,
when it is accepted by the Government, and is to be regarded as of that date. Moses
v. U. S., 166 U. S., 571. A surety on the bond of one in official relation with the
Government is himself in contract relation with it, and, as he is liable to be sued
by it, he has the right to sue it whenever a balance is due from it to which, on the
principle of subrogation, he will ultimately be entitled. Shwarz v. U. S., 35 Ct. Cls.,
303; Behan v. U. S., 18 ibid., 687, 110 U. S., 338; Hitchcock v. U. S., 27 Ct. Cls., 185,
164 U. S., 227; Pope v. U. S., 14 ibid., 446. No jurisdiction is conferred upon the
Comptroller of the Treasury to render a decision, at the request of the head of a
Department, upon the question whether the filing of a new bond relieves the sureties
on a prior bond of the same official from liability after the date of the new bond,
such a question not involving a payment to be made under the head of the Depart-
ment. Section 8, act of July 31, 1894 (28 Stat. L., 20).
The giving of bond is not necessary to entitle persons appointed to office in the
Army requiring the disbursement of money, to begin to receive pay; they are entitled,
like other officers, to be paid upon the acceptance of their appointments, according
to par. 1448, Army Regulations, whether they have at that time furnished their
bonds or not. XVI Op. Att. Gen., 38. The expense incurred by an officer in
furnishing the bond required by law of all disbursing officers of the Government, is
not a proper charge against the Government, even though the officer serves without
compensation. II Compt. Dec., 262; U. S. v. Van Duzee 140 U. S., 171.
Section 1191, Revised Statutes, requires bonds only of certain disbursing officers
specifically named. In the absence of any express provision of law, prescribing that
bonds shall be furnished by other disbursing officers, the President, in his discretion,
and for the better security of the public funds, may, through the head of the proper
department, require such bonds to be furnished, (a) Dig. Opin. J. A. G., par. 544.
A bond can not be extended beyond the period of the original obligation so as to
continue to bind the sureties, without their consent. Nor can an expired bond be
revived so as to bind the sureties without their consent. The Secretary of War (or
President) has no power to release the sureties in an official bond from their liability
to the United States. (6) A neglect by the Government to institute suit on a bond does
not discharge the sureties; ladies not being in such cases imputable to the United
States. («) Ibid., par. 549.
One of two (or several) sureties can not withdraw independently from his obliga-
tion; and if allowed to do so by the obligee, the other surety (or sureties) will be
released as to him. But the Secretary of War is not empowered to release the sure-
ties on a disbursing officer's bond. Ibid., par. 554.
The law of the place at which a contract is made governs as to its interpretation,
except where the contract is to be performed elsewhere, in which case the law that
governs in this respect is the law of the place of performance. An official bond,
made to the United States, wherever actually signed, is — as has been held by the
Supreme Court (a) — a contract made and to be performed at Washington ; and by the
laws of the District of Columbia the contract of a married woman as surety is not
binding. Moreover, it is not the practice of the War Department to accept a feme
covert as a surety, and before a female surety will be accepted she is required to make
oath that she is single in addition to justifying as required of other sureties. Ibid.,
par. 550.
If after the execution of a bond a material change be made in the name or descrip-
tion of the principal, by erasure, interlineation, or otherwise, without the assent of
the sureties or a surety, even though such change be made to correct a mistake, the
surety or sureties not consenting will be released. In a case of such an alteration,
recommended that & new bond be required. Ibid., par. 555. See, also, ibid., para-
graphs 554-560.
While departmental regulations duly promulgated have the force of law, in a lim-
ited sense, they can not enlarge or restrict the liability of an officer on his bond.
Meads ». U. S., 81 Fed. Rep., 684.
a Bonds may be required by the Government from officers appointed to places of trust, though
there is no statutory authority to take such bonds, and they will be valid as common-law obligations.
In a bond with sureties, given by an officer of the Government, it is sufficient to make the bond valid
as a common-law obligation that it is voluntarily given and that the office and the duties assigned
to the officer and covered by the bond are duly authorized by law. U. S. v. Tingey, 5 Pet., 115; U. S.
v. Bradley, 10 id., 343, 360; U. S. v. Rogers, 28 Fed. Rep., 607; VI Opins. At. Gen., 24.
ftVIIOpins. At. Gen., 62.
cU. S. v. Kirkpatrick, 9 Wheaton, 720.
MILITARY LAWS OF THE UNITED STATES. 221
required by law, of all district attorneys, collectors of JJjr.g \ ^ %
customs, naval officers, and surveyors of customs, navy 249^P£2^,i&2,
agents, receivers and registers of public lands, pay masters jffg^'v'il'63'
in the Army, Commissary -General, and by all other officers JfJij
employed in the disbursement of the public moneys, under jf^
the direction of the War or Navy Departments.1 2^c 3639 B'g
SECURITY COMPANIES AS SURETIES.
594. Whenever any recognizance, stipulation, bond, or pane£srias Csure-
undertaking conditioned for the faithful performance of tie£ug 13 1894 v
any duty, or for doing or refraining from doing anything 28> p- 279-
in such recognizance, stipulation, bond, or undertaking
specified, is by the laws of the United States required or
permitted to be given with one surety or with two or more
sureties, the execution of the same or the guaranteeing of
the performance of the condition thereof shall be sufficient
when executed or guaranteed solely by a corporation incor-
porated under the laws of the United States or of any
State having power to guarantee the fidelity of persons
holding positions of public or private trust, and to execute
and guarantee bonds and undertakings in judicial pro.
ceedings: Provided, That such recognizance, stipulation,
bond, or undertaking be approved by the head of depart-
ment, court, judge, officer, board, or body executive, legis.
lative, or judicial required to approve or accept the same.
But no officer or person having the approval of any bond
shall exact that it shall be furnished by a guarantee com-
pany or. by any particular guarantee company.2 Act of
August 13, 1894 (%$ Stat. L., 279).
1 The Government has the power, through the head of a department, to take a
bond from a disbursing officer, though there is no law or general regulation requiring
it; and a bond is none the less a voluntary bond because demanded by the superior
officer, if not illegally extorted. Moses v. U. S., 166 U. S., 571.
2 Execution, sealing, etc. — The bond should of course be executed by all the
parties — obligor and sureties. It has been held by the U. S. Supreme Court that
an official bond, though without seals, may be good as a contract at common law.
To avoid, however, any questions that might arise from the absence of a seal, advised
(February, 1868) that formal seals "of wax or other adhesive substance," be in all
cases required to be affixed by the subscribing parties. Dig. Opin., J. A. G., par. 534.
A bond given by a disbursing officer of the Army (or any bond required by the
War Department) wherein the Secretary of 'War is made the obligee, is in incorrect
form. The obligee should be— The United States of America. Ibid., par. 542.
A bond should of course be dated, but the omission of the date will not affect the
validity of the instrument, as the true date of execution can be proved aliunde, in the
event of a suit on the bond. Ibid., par. 543.
The seal of both obligor and sureties must be a formal one, of wafer, wax, or
other adhesive substance. A mere scroll made with the pen is not accepted as a sub-
stitute for a seal in the War Department. A corporation obligor should affix its
corporate seal if it has one. But the fact that a corporation has not adopted a cor-
porate seal will not affect the validity of its execution of a bond in which it is
principal or surety, provided some form of seal be added to its signature. A cor-
222 MILITARY LAWS OF THE UNITED STATES.
in j u6- 595. No such company shall do business under the pro-
surety1 cis visions of thisact beyond the limits of the State or Territory
surety
UIsecr<2 *S under whose laws it was incorporated and in which its
principal office is located nor beyond the limits of the Dis-
trict of Columbia, when such company was incorporated
under its laws or the laws of the United States and its
principal office is located in said District, until it shall, by
poration may make and use any seal, in its discretion, in the same manner as a
private individual. Ibid., par. 544.
Justification of sureties. — Of two or more sureties to an official bond, each, according
to the regulation, should justify separately; a justification in joint form is irregular
and improper. An affidavit of justification should properly be expressed in the first
person; not in the third. Ibid., par. 540.
The affidavit of justification of a surety should be dated, so that it may appear when
he was worth the amount specified. The names of the sureties in the justifications
should be identical with those inserted in the body of the bond. Their names should
not be omitted to be recited in the bond with the name of the principal. Ibid.,
par. 551.
"The affidavit of justification should be taken before some officer, like a notary pub-
lic, having authority to administer oaths for general purposes and whose official
character is authenticated by his seal, (a) But as the justification is no part of the
bond, and the administration of the oath by an official not competent to administer
it does not affect the validity of the bond, the irregularity of the justification, where
there is nothing to show that the oath was not taken in good faith by the surety,
may be waived by the Secretary of War, and in practice it is now (May, 1893)
waived, and the bond accepted if otherwise valid. And in case where the seal of the
notary was omitted, recommended that the instrument be returned to have the seal
impressed upon the certificate, for the purpose of such authentication, which would
be wanting without it. Ibid., par. 553.
Sureties. — The obligation of each surety must be for the whole amount of the
penalty; the regulation requiring that the sureties "shall be jointly and severally
bound for the whole amount of the bond." So, where the penalty in a quartermas-
ter's joint and several official bond was $10,000, and the sureties, in executing the
same, assumed to be bound only in the sum of $5,000 each, the words "for five thou-
sand dollars" being written under each signature — held that, the instrument was con
tradictory, did not conform to the regulations, and should not be accepted. And
similarly held in a case of a bond with a penalty of $40,000, where the sureties wrote
opposite their signatures, respectively, ' ' for $35, 000, " "for $5, 000. ' ' Sureties can not
qualify their obligation by thus limiting their personal liabilities. Ibid., par. 535.
There is no statute or regulation prohibiting an officer of the Army from acting as
a surety on the official bond of another officer. Such a relation, however, is not one
to be favored. Ibid., par. 536.
Par. 572 of the Regulations contemplates plural sureties with bonds of disbursing
officers. A justification of a surety, however, is no part of the bond, and as the
object of the justification is to satisfy the Secretary of War that the surety is good for
double the penalty, the Secretary, where amply satisfied that one certain person
offered or executing as surety is pecuniarily sufficient for such amount, would be
authorized to accept him (on his properly justifying) as sole surety, and to waive
any further surety or sureties with the instrument. A subordinate of course can
have no such authority. In view, however, of the terms of the regulation and of
the practice under it, this authority would of course most rarely be exercised in cases
of disbursing officers' bonds. Ibid., par. 537.
A captain of the commissary department having given bond in a penalty of $12,000,
one of his sureties deceased. Par. 563, Army Regulations, 1895, prescribes that
"the sureties to bonds given by disbursing officers shall be bound jointly and sever-
ally." The officer offered a new bond with one surety in a penalty of $6,000. Held
that such security would not be legally -sufficient, but that a new joint and several
bond in the penalty of $12,000 would be required. Ibid., par. 552.
For opinions respecting security companies as sureties see Dig. Opin., J. A. G.,
pars. 596-602.
a Under section 19 of act of Congress of May 28, 1896 (29 Stat. L., 184), United States commissioners
and all clerks of United States courts are authorized to administer oaths generally. 3 Comp.
Pec., 65.
MILITAEY LAWS OF THE UNITED STATES. 223
a written power of attorney, appoint some person residing
within the jurisdiction of the court for the judicial district
wherein such suretyship is to be undertaken, who shall be
a citizen of the State, Territory, or District of Columbia,
wherein such court is held, as its agent, upon whom may
be served all lawful process against such company, and
who shall be authorized to enter an appearance in its behalf.
A copy of such power of attorney, duly certified and authen-
ticated, shall be filed with the clerk of the district court of
the United States for such district at each place where a
term of such court is or may be held, which copy, or a cer-
tified copy thereof, shall be legal evidence in all controver-
sies arising under this act. If any such agent shall be
removed, resign, or die, become insane, or otherwise inca-
pable of acting, it shall be the duty of such company to
appoint another agent in his place, as hereinbefore pre-
scribed, and until such appointment shall have been made,
or during the absence of any agent of such company from
such district, service of process may be upon the clerk of
the court wherein such suit is brought, with like effect as
upon an agent appointed by the company. The officer
executing such process upon such clerk shall immediately
transmit a copy thereof by mail to the company, and state
such fact in his return. A judgment, decree, or order of a
court entered or made after service of process as aforesaid
shall be as valid and binding on such company as if served
with process in said district. Sec. #, ibid.
596. Every company before transacting any business copy of char-
under this act shall deposit with the Attorney-General of with Attomey-
the United States a copy of its charter or articles of incor- sec. 8,'<wd.
poration, and a statement signed and sworn to by its presi-
dent and secretary showing its assets and liabilities. If
the said Attorney-General shall be satisfied that such Attomey-Gen-
, . 111. eral to grant au-
compan}^ has authority under its charter to do the busi- thority to act.
, Sec, 3? w)i(z.
ness provided for in this act, and that it has a paid-up
capital of not less than two hundred and fifty thousand
dollars, in cash or its equivalent, and is able to keep and
perform its contracts, he shall grant authority in writing to
such company to do business under this act. Sec. 3, ibid.
597. E^ery such company shall, in the months of Janu- P9?Sart|riyp /£
ary, April, July, and October of each year, file with the ATtr0yrpn°^Gen-
said Attorney-General a statement, signed and sworn toer^-c 4 md
by its president and secretary, showing its assets and lia-
bilities, as is required by section three of this act. And
the said Attorney-General shall have the power, and it
224 MILITARY LAWS OF THE UNITED STATES.
shall be his duty, to revoke the authority of any such com-
pany to transact any new business under this act whenever
in his judgment such company is not solvent or is conduct-
ing its business in violation of this act. He may institute
inquiry at any time into the solvency of said company and
may require that additional security be given at any time
by any principal when he deems such company no longer
sufficient security. Sec. h ibid.
°s ^^' ^ny surety company doing business under the pro-
visions of this act may be sued in respect thereof in any
court of the United States which has now or hereafter
may have jurisdiction of actions or suits upon such recog-
nizance, stipulation, bond, or undertaking in the district
in which such recognizance, stipulation, bond, or under-
taking was made or guaranteed, or in the district in which
the principal office of such company is located. And for
the purposes of this act such recognizance, stipulation ,
bond, or undertaking shall be treated as made or guaran-
teed in the district in which the office is located, to which
it is returnable, or in which it is filed, or in the district in
which the principal in such recognizance, stipulation,
bond, or undertaking resided when it was made or guaran-
teed. Sec. 5, ibid.
Forfeiture o f 599. If any such company shall neglect or refuse to pay
a yn fu$£- any final judgment or decree rendered against it upon any
sec!6, ibid, such recognizance, stipulation, bond, or undertaking made
or guaranteed by it under the provisions of this act, from
which no appeal, writ of error, or supersedeas has been
taken for thirty days after the rendition of such judg-
ment or decree, it shall forfeit all right to do business
under this act. Sec. 6, ibid.
companies es- 600. Any company which shall execute or guarantee any
topped from de- . . . , . . , , , , , , 1,1
nying power, recognizance, stipulation, bond, or undertaking" under tne
Sec f. 7, ibid. ° . , ' .F , . ,
provisions of this act shall be estopped, in any proceed-
ing to enforce the liability which it shall have assumed to
incur, to deny its corporate power to execute or guarantee
such instrument or assume such liability. Sec. 7, ibid.
penalty for 601. Any company doing business under the provisions
ply with° provi- of this act which shall fail to comply with any of its pro-
81 Bee. s, ibid, visions shall forfeit to the United States for every such
failure not less than five hundred dollars nor more than
five thousand dollars, to be recovered by suit in the name
of the United States in the same courts in which suit may
be brought against such company under the provisions of
this act, and such failure shall not affect the validity of
any contract entered into by such company. Sec. #, ibid.
m
MILITAEY LAWS OF THE UNITED STATES 225
EXAMINATION AND RENEWAL OF BONDS.
602. Hereafter every officer required by law to take and
approve official bonds shall cause the same to be examined 5 Mar 2
at least once every two years for the purpose of ascertain- 1895> v.^.p.so?.'
ing the sufficiency of the sureties thereon ; and every officer
having power to fix the amount of an official bond shall
examine it to ascertain the sufficiency of the amount
thereof and approve or fix said amount at least once in
two years and as much oftener as he may deem it neces-
sary.1 Sec. 5, act of March 2, 1895 (28 Stat. L., 807).
Hereafter every officer whose duty it is to take and j£?fwals-
approve official bonds shall cause all such bonds to be
renewed every four years after their dates, but he may
require such bonds to be renewed or strengthened oftener
if he deem such action necessary. In the discretion of
such officer the requirement of a new bond may be waived
for the period of service of a bonded officer after the
expiration of a four-year term of service pending the
appointment and qualification of his successor.2 Ibid.
603. The nonperformance of any requirement of this sec- Suret?esility °f
tion on the part of any official of the Government shall Ibid-
not be held to affect in any respect the liability of principal
or sureties on any bond made or to be made to the United
States: Provided further, That the liability of the principal
and sureties on all official bonds shall continue and cover
the period of service ensuing until the appointment and
qualification of the successor of the principal: And pro-
vided further, That nothing in this section shall be con-
strued to repeal or modify section thirty-eight hundred
and thirty-six of the Revised Statutes of the United States,
Ibid.
LIABILITY OF SURETIES; RELEASE.
604. Hereafter, whenever any deficiency shall be dis- sureties on offl-
covered in the accounts of any official of the United States, Notice of pnn-
J 'cipal's defi-
or ot any officer disbursing or chargeable with public ciency to be
communicated
money, it shall be the duty of the accounting officers to secuntie^
making such discovery to at once notify the head of the 25, p. 237.'
Department having control over the affairs of said officer
1 United States district attorneys are not required or authorized to make the
examination into the sufficiency of the sureties on official bonds required by section
5 of the act of March 2, 1895 (28 Stat. L., 807).
2 The expenses incurred by an officer in furnishing the bond required by law of all
disbursing officers of the Government is not a proper charge against the Government,
even though the officer serves without compensation. II Compt. Dec., 262.
22924—08 15
226
MILITARY LAWS OF THE UNITED STATES.
ieasedeafter five
years without of
of the nature and amount of said deficiency, and it shall be
the immediate duty of said head of Department to at once
notify all obligors upon the bond or bonds of such official
of the nature of such deficiency and the amount thereof.
Said notification shall be deemed sufficient if mailed at the
post-office in the city of Washington, District of Columbia,
addressed to said sureties respectively, and directed to the
respective post-offices where said obligors may reside, if
known; but a failure to give or mail such notice shall not
discharge the surety or sureties upon such bond.1 Act of
August 8, 1888 (25 Stat. L., 387).
^05. If, upon the statement of the account of any official
United States, or of any officer disbursing or charge-
able with public money, by the accounting officers of the
Treasury, it shall thereby appear that he is indebted to
the United States, and suit therefor shall not be instituted
within five years after such statement of said account, the
sureties on his bond shall not be liable for such indebted-
ness.2 Sec. #, ibid.
DEPOSIT AND SAFE-KEEPING OF THE PUBLIC MONEY.
Par.
606. Duty of disbursing officer.
607. Penalty for failure to deposit.
608. Duties of disbursing officers as cus-
todians.
°offidcere
Par.
609. Exchanging of funds.
610. Premiums on exchanges to be ac-
counted for.
606' Jt sha11 be the duty of ever.Y disbursing officer hav-
mone° public mg any public money intrusted to him for disbursement to
i22U? W8i46' c' deposit t°e same with the Treasurer or some one of the
c4^9F?bi97' lm' assis^ant treasurers of the United States, and to draw for
Sec. 3620, R.S. the same only as it may be required for payments to be
made by him in pursuance of law [and draw for the same
only in favor of the persons to whom payment is made]; and
all transfers from the Treasurer of the United States to a
disbursing officer shall be by draft or warrant on the Treas-
1 For instructions respecting the recovery of balances due the United States on final
settlements of bonded officers, see Vol. V, Comptrollers' Decisions, pp. 988-990; for
methods of keeping and rendering accounts by disbursing officers not under bond,
eee ibid, pp. 990-991.
The regulations of the Treasury Department are imperative, and expressly prohibit
the transfer of funds of any character for which an officer is accountable from one
bond to another, and when this regulation is violated it becomes necessary for the
officer to deposit the sum transferred as a credit to his first bond, or else procure
the admission of the sureties on the second bond that the officer actually had the
sum in hand when it was executed, and that they are liable on said bond for the
same. 3 Dig. Compt. Dec., 13. See also U. S. v. McLane, 74 Fed. Rep., 153; U. S. v.
Wade, 75 ibid, 261.
8 For statutory provisions respecting distress warrants, see the chapter entitled
THE TREASURY DEPARTMENT.
MILITARY LAWS OF THE UNITED STATES. 227
ury or an assistant treasurer of the United States. In
places, however, where there is no treasurer or assistant
treasurer, the Secretary of the Treasury may, when he
deems it essential to the public interest, specially authorize
in writing the deposit of such public money in any other
public depository, or, in writing, authorize the same to be
kept in any other manner, and under such rules and regu-
lations as he may deem most safe and effectual to facilitate
the payments to public creditors.1 (See sec. 5488, E. 8.)
607. Every person who shall have moneys of the United faj *£ aity jor
States in his hands or possession, and disbursing officers nf g1"'3'^85^ c
having moneys in their possession not required for current 24|'ec 6' May 28
expenditure, shall pay the same to the Treasurer, an assist- ^^jg'A1^
><'•'. »I»J1, H. N.
ant treasurer, or some public depositary of the United
States, without delay, and in all cases within thirty days of
their receipt. And the Treasurer, the assistant treasurer,
or the public depositary shall issue duplicate receipts for
the moneys so paid, transmitting forthwith the original to
the Secretary of the Treasury, and delivering the duplicate
tc the depositor: Provided, That postal revenue and debts
due to the Post-Office Department shall be paid into the
Treasury in the manner now required by law.2
1 For penalty for unlawfully depositing, loaning, converting, or transferring public
money see section 5488, Revised Statutes, paragraph 645, post.
* In accordance with the pro visions of the above sections any public money advanced
to disbursing officers of the United States must be deposited immediately to their
respective credits, with either the United States Treasurer, some assistant treasurer,
or by special direction of the Secretary of the Treasury with a national bank deposi-
tary nearest or most convenient, except —
(1) Any disbursing officer of the War Department specially authorized by the Sec-
retary of War, when stationed on the extreme frontier or at places far remote from
such depositaries, may keep, at his own risk, such moneys as may be intrusted to
him for disbursement.
(2) Any officer receiving money remitted to him upon specific estimates may dis-
burse it accordingly, without waiting to place it in a depositary, provided the pay-
ments are due and he prefers this method to that of drawing checks. Treas. Circ. of
1898. G. O. 59, A. G. O., 1897.
Every disbursing officer, when opening his first account, before issuing any checks,
will furnish the depositary on whom checks are drawn with his official signature
duly verified by some officer whose signature is known to the depositary. Ibid.
Any check drawn by a disbursing officer upon moneys thus deposited must be in
favor of the party, by name, to whom the payment is to be made, and payable to
"order," or "bearer," with these exceptions:
(1) To make payments of individual pensions, checks for which must be made
payable to "order," (2) to make payments of amounts not exceeding twenty dol-
lars, (3) to make payments at a distance from a depositarv, and (4) to make pay-
ments of fixed salaries due at a certain period; in either of which cases except the
first, any disbursing officer may draw his check in favor of himself, or "order," or
"bearer," for such amount as may be necessary for such payment, but in the last-
named case the check must be drawn not more than two days before the salaries
become due.
Any disbursing officer or agent drawing checks on moneys deposited to his official
credit, must state on the face or back of each check the object or purpose to which
the avails are to be applied, except upon checks issued in payment of individual pen-
sions, the special form of such checks indicating sufficiently the character of disburse-
ment. If the object or purpose for which any check of a public disbursing officer is
228 MILITARY LAWS OF THE UNITED STATES.
bi£3S? offlc^ 608- The Treasurer of the United States, all assistant
pubHcmdJneys0ftreasurers? and those performing the duties of assistant
9oA"l,'v.98p6>6o';treasurer5 a^ collectors of the customs, all surveyors of
n4,r's. 2, v.8!!1, p! the customs, acting also as collectors, all receivers of pub-
^M/S^ v.'io^p! l*c moneys at the several land-offices, all postmasters, and
SjaAv.ttjt^H public officers of whatsoever character, are required to
c72i,J^v.'i38^:^eeP safely? without loaning, using, depositing in banks,
p! or exchanging for other funds than as specially allowed by
& s4,' v8.'i58!6p.' law> ftN t^e Public money collected by them, or otherwise
27Lc.3639,R.s. a^ any time placed in their possession and custody, till the
same is ordered, by the proper Department or officer of
drawn is not stated thereon, as required, or if any reason exists for suspecting fraud,
the office or bank on which such check is drawn will refuse its payment.
Such statement may be made in brief form, but must clearly indicate the object of
the expenditure, as, for instance, "pay," "pay roll," or "payment of troops,"
adding the fort or station; "purchase of subsistence" or other supplies; "on account
of construction," mentioning the fortification or other public work for which the
payment is made; "payments under $20," etc.
Checks will not be returned to the drawer after their payment, but the depositary
with whom the account is kept shall furnish the officer with a monthly statement of
his deposit account. Ibid.
No allowance will be made to any disbursing officer for expenses charged for col-
lecting money on checks.
Whenever any disbursing officer of the United States shall cease to act in that
capacity he will at once inform the Secretary of the Treasury whether he has any
public funds to his credit in any office or bank, and, if so, what checks, if any, he
nas drawn against the same, which are still outstanding and unpaid. Until satisfac-
tory information of this character shall have been furnished, the whole amount of
such moneys will be held to meet the payment of his checks properly payable
therefrom.
In case of the death, resignation, or removal of any disbursing officer, checks previ-
ously drawn by him will be paid from the funds to his credit, unless such checks have
been drawn more than four months before their presentation, or reasons exist for
suspecting fraud. Any check previously drawn by him and not presented forvpay-
ment within four months of its date will not be paid until its correctness shall have
been attested by the Secretary or Assistant Secretary of the Treasury. Ibid.
Deposits to the credit of the Treasurer of the United States on account of repay-
ment of disbursing funds must be made with the office or bank in which such funds
are to the credit of the disbursing officer. Ibid.
For every deposit made by a disbursing officer, to his official credit, a receipt in
form as below shall be given, setting forth its serial number and the place an.d date
of issue; the title of each officer shall be expressed, and the title of the disbursing
account shall also show for what branch of the public service the account is kept, as
it is essential for the proper transaction of departmental business that accounts of
moneys advanced from different bureaus to a disbursing officer serving in two or more
distinct capacities be kept separate and distinct from each other, and be so reported
to the Department both by the officer and the depositary, the receipt to be retained
by the officer in whose favor it is issued.
No. - . Office of the U. S. (Assistant Treasurer or Depositary),
_ _ 1 bq
, "~~ , J-O«7 .
Received of - , - dollars, consisting of -- , to be placed to his credit
as - , and subject only to his check in that official capacity.
United States (Assistant Treasurer or Depositary.)
These regulations are intended to supersede those of August 24, 1876. Ibid. (See
G. 0.59, A.G.O., 1897.)
A disbursing officer who deposits money in a bank, not designated as a depository
in accordance with the requirements of sections 3620 and 3639 of the Revised Stat-
utes, is liable, with his sureties, for any loss that may arise from the failure of said
bank. ' XX Opiri. Att. Gen.} 24,
MILITARY LAWS OF THE UNITED STATES. 229
the Government, to be transferred or paid out; and when
such orders for transfer or payment are received, faithfully
and promptly to make the same as directed, and to do and
perform all other duties as fiscal agents of the Govern-
ment which may be imposed by any law, or by any regu-
lation of the Treasury Department made in conformity to
law. The President is authorized, if in his opinion the
interest of the United States requires the same, to regulate
and increase the sums for which bonds are, or may be, re-
quired by law, of all district attorneys, collectors of cus-
toms, naval officers, and surveyors of customs, navy agents,
receivers and registers of public lands, paymasters in the
Army, commissary-general, and by all other officers em-
ployed in the disbursement of the public moneys, under
the direction of the War or Navy Departments.
EXCHANGES OF FUNDS.
609. No exchange of funds shall be made by any dis- Exchange of
. J J funds restricted.
bursingf omcer or agent 01 the Government, or anv srrade Aug. 6, i846, c.
*71 & ,90, s. 20, v. 9, p. 64;
or denomination whatsoever, or connected with any branch Feb. 22,1862,0.33,
8 1 V 12 D S45*
of the public service, other than an exchange for gold, sil- July ii, '1862, c!
ver, United States notes, and national-bank notes; and 532- Mar. 3, im,
every such disbursing officer, when the means for his dis- 7io; June 3, im,
,. . , c. 106, s. 23, v. 13,
bursements are furnished to him in gold, silver, United p. ioe.
States notes, or national-bank notes, shall make his pay-
ments in the money so furnished; or when they are fur-
nished to him in drafts, shall cause those drafts to be
presented at their place of payment, and properly paid
according to law, and shall make his payments in the
money so received for the drafts furnished, unless, in either
case, he can exchange the means in his hands for gold and
silver at par. And it shall be the duty of the head of
the proper Department immediately to suspend from duty
any disbursing officer or agent who violates the provi-
sions of this section, and forthwith to report the name of
the officer or agent to the President, with the fact of the
violation, and all the circumstances accompanying the
same, and within the knowledge of the Secretary, to the
end that such officer or agent may be promptly removed
from office or restored to his trust and the performance of
his duties, as the President m&y deem just and proper.
610. No officer of the United States shall, either directly Je^T^ubiic
or indirectly, sell or dispose of to any person, for a pre- ^neys to be ac-
mium, any Treasury note, draft, warrant, or other public g^ji^ .if?'®!
security, not his private property, or sell or dispose of the sec.sesjs, B.S.
230
MILITARY LAWS OF THE UUTTED STATES.
avails or proceeds of such note, draft, warrant, or security,
in his hands for disbursement, without making return of
such premium, and accounting therefor by charging the
same in his accounts to the credit of the United States;
and any officer violating this section shall be forthwith
dismissed from office.
PROCEEDS OF SALES.
Par.
615. The same, subsistence funds.
616. Expenses of sales.
Par.
611. Gross proceeds to be deposited in the
Treasury.
612. The same, exceptions.
613. 614. The same, application of pro-
ceeds.
safes °o be depo's- 611. The gross amount of all moneys received from what-
d£ctionthout de" ever source for the use of the United States, except as
no'T'i3' v84^' p' otherwise provided in the next section, shall be paid by the
398=gsept^ 28, 1850, officer or agent receiving the same into the Treasury, at
^sec. 3617, R. s. as early a day as practicable, without any abatement or
deduction on account of salary, fees, costs, charges, ex-
penses, or claim of any description whatever. 1 But nothing
herein shall affect any provision relating to the revenues of
the Post-Office Department,
proceeds of 612. All proceeds of sales of old material, condemned
sales of mate- "t
riMa 3 1872 c s^ores? supplies, or other public property of any kind, ex-
is0' Apr5' 20 ^s'ee' ceP* ^e proceeds of the sale or leasing of marine hospitals,
c'^4o^' ^taJ'1^' or °^ ^e sales of revenue-cutters, or of the sales of com-
1847, ^M-ji.^v' missary stores to the officers and enlisted men of the Army,
vHt' c< IK?-' June or °^ materials, stores, or supplies sold to officers or sol-
17 ^'ssV-^Feb'^618 °^ ^e Army, or 0^ ^e sa^e O* condemned Navy
Ik 1877> v' 19> p> clothing, or of sales of materials, stores, or supplies to
sec. 3618, B. s. any exploring or surveying expedition authorized by law,
shall be deposited and covered into the Treasury as mis-
cellaneous receipts, on account of " proceeds of Govern-
ment property," and shall not be withdrawn or applied,
except in consequence of a subsequent appropriation made
by law.1
1 Under section 3618 of the Revised Statutes, all proceeds of sales of old material,
condemned stores, supplies, or other public property of any kind, with certain
specified exceptions, are to be deposited and covered into the Treasury as miscel-
laneous receipts on account of "proceeds of Government property," and are not
to be withdrawn or applied, except in consequence of a subsequent appropriation
made by law. 3 Dig. 2nd Compt. Dec., 1249.
All proceeds of sales of public property covered into the Treasury as miscellaneous
receipts should be charged and credited on account of "proceeds of Government
property," as contemplated by section 3618 of the Revised Statutes. Ibid., 1255.
The proceeds of sales of all public property, the disposition of which is not pro-
vided for by the preceding paragraph, after the expenses of sale have been deducted,
will be deposited to the credit of the Treasurer of the United States as ' ' Miscella-
MILITARY LAWS OF THE UNITED STATES. 231
613. All moneys received from the leasing or sale of.
marine hospitals, or the sale of revenue cutters, or f rom majeria]-'
Mar. 6, 1847, c.
the sale of commissary stores to the officers and enlisted Apr ^'ikfe17?/
men of the Army, [or from the sale of materials, stores,
or supplies sold to officers and soldiers of the Army,] or
from sales of condemned clothing of the Navy, or from ™72> c
sales of materials, stores, or supplies to any exploring or18k,gc.34Vv.i7,
surveying expedition authorized by law, shall respectively J875^' l^T- 1|'
revert to that appropriation out of which they were orig- ^^jj: '* ^bv- J8«
inally expended, and shall be applied to the purposes for^77,c.'69,v.i9,p!
which they are appropriated by law.1 See. 3692, B. s.
614. The Secretary of the Navy is authorized to dispose sales of useless
of the useless ordnance material on hand at public sale, ceeds available
according to law, the net proceeds of which shall be turned new material. °
. , ,, %* .. .. .. , . ,, -, , « Ch. 130, Mar. 3,
into the Treasury; and in the case of sale of 1375, v. is, p. 388.
like materials in the War Department, the proceeds of
which shall be turned into the Treasury, an amount equal
to the net proceeds of such sale is hereby appropriated for
the purpose of procuring a supply of material adapted in
manufacture and caliber to the present wants of the war
service; and there shall be expended in the War Depart-
ment, under this provision, not more than seventy-five
thousand dollars in any one year. Act of March 3, 1875
(18 Stat. L.,388).
Hereafter the cost to the Ordnance Department of all Anns for mmtia.
ordnance and ordnance stores issued to the States, Terri- 25, p. sss.
tories, and District of Columbia, under the act of Febru-
ary twelfth, eighteen hundred and eighty-seven, shall be
credited to the appropriation for "manufacture of arms
at national armories," and used to procure like ordnance
neous receipts on account of proceeds of Government property," for which certificates
of deposit will issue, showing the name, rank, regiment or corps of the depositor, the
nature of the deposit, the kind of property, and the bureau to which it pertained.
Par. 697, A. R., 1901.
The transfer of public property from one bureau or Department of the Government
to another is not a sale, and the money received therefor may be repaid to the appro-
priation from which it was originally expended. IV Compt. Dec., 688.
The transfer of public property from one bureau or Department to another is not
regarded as a sale. If money is received therefor, it may be used to replace such
stores and will be reported accordingly. Par. 698, A. R., 1901.
1 Moneys received for stores, materials, or supplies (except^eubsistence stores) sold
to officers, enlisted men, or exploring or surveying expeditions authorized by law
will be deposited to the credit of the Treasurer of the United States, and respectively
revert to the appropriation out of which originally expended. Proceeds of sales of
useless ordnance material are expended under conditions^ prescribed by law. Pro-
ceeds of sales of subsistence supplies are immediately available for the purchase of
fresh supplies. Par. 696, A. R., 1901. Under section 3692 of the Revised Statutes
all moneys received from the sale of materials, stores, or supplies to officers and sol-
diers of the Army can be applied to the liquidation of liabilities against the appro-
priation out which they were originally expended, only during the fiscal year 'n
which the sale was made. 3 Dig. 2nd Compt. Dec., 1246.
232
MILITAEY LAWS OF THE UNITED STATES.
nations
istence
1875,
stores, and that said appropriation shall be available until
exhausted, not exceeding two years. Act of March 2,
1889 (25 Stat. Z., 833).
fof'subsistence ^15. So much of the appropriation for subsistence of the
crasaeboff°srt??ers Army as maybe necessary may be applied to the purchase
cerafetc. to °&' °^ subsistence stores for sale to officers for the use of them-
sa^escavl?iab?ese^ves an(* their families and to commanders of companies
chasesmilar pur" or other organizations, for the use of the enlisted men of
their companies or organizations, and the proceeds of all
sales of subsistence supplies shall hereafter be exempt
from being covered into the Treasury and shall be imme-
diately available for the purchase of fresh supplies. Act
of March 3, 1875 (18 Stat. Z., 410).
Expenses of 616. From the proceeds of sales of old material, con-
18%, v. demned stores, supplies, or other public property of any
kind, before being deposited into the Treasury, either as
miscellaneous receipts on account of ' ' proceeds of Govern-
ment property" or to the credit of the appropriations to
which such proceeds are by law authorized to be made,
there may be paid the expenses of such sales, as approved
by the accounting officers of the Treasury, so as to require
only the net proceeds of such sales to be deposited into the
Treasury, either as miscellaneous receipts or to the credit
of such appropriations, as the case may be.1 Act of June
8,1896(29 Stat. Z.,
29, p. 268.
DISBURSEMENTS.
Par.
617, 618. Advances.
619. No expenditures beyond appropria-
tions.
620. Application of appropriations.
621. Entry of receipts and disbursements.
Par.
622. Accounting by items.
623. Amount of appropriation, how de-
termined.
624. Disposition of balances.
pulwte^money 617> -^o advance of public money shall be made in any
P™anb3M823, v. case whatever. And in all cases of contracts for the per-
3'sec.7ll'48, it s f°rmance of any service, or the delivery of articles of any
description, for the use of the United States, payment
shall net exceed the value of the service rendered, or of
JThe act of June 8, 1896, authorizing the payment of expenses, "as approved by
the accounting officers of the Treasury," incurred in the sale of old material, etc.,
from the gross proceeds thereof, and the payment into the Treasury of the net proceeds
only, does not require that such expenses shall be so approved before payment, but
simply that an itemized account thereof shall be rendered to the accounting officers
for settlement as any other item of expenditure of Government funds. Ill Compt.
Dec., 149. The course authorized by the act of June 8, 1896, in the payment of expenses
of sales of old materials from the proceeds thereof, and the deposit in the Treasury of
the net proceeds only, should be adopted in all cases, although there may be an
appropriation available for the payment of expenses incurred in such sales. Ibid. , 190.
MILITARY LAWS OF THE UNITED STATES. 233
the articles delivered previously to such payment.1 It
shall, however, be lawful, under the special direction of the
President, to make such advances to the disbursing officers
of the Government as may be necessary to the faithful and
prompt discharge of their respective duties, and to the
f ul tillment of the public engagements. The President may
also direct such advances as he ma}^ deem necessary and
proper to persons in the military and naval service em-
plo}7ed on distant stations, where the discharge of the pay
and emoluments to which they are entitled can not be reg-
ularly effected.
618. Troops about to embark for service in the Philip- t^g™ embark
pine Islands may, in the discretion of the Secretary of War, ig[and^hilippine
be paid one month's wages in advance prior to embarkation. goJul^«J 1898> v>
Act of July 7, 1898 (30 Stat. Z., 721}.
619. No Department of the Government shall expend, in NO expendi-
r> ! . ,, ... tures beyond ap-
any one fiscal year, anv sum in excess of appropriations propnations.
J U ^ / *1 tT%c i lu t* July 12, 1870, c.
made by Congress ior that fiscal year, or involve the Gov- 251, s. 7, \. 16, p.
eminent in any contract for the future payment of money sec. 8679, it. s.
in excess of such appropriations.
620. All sums appropriated fo
* * *
expenditure in the public service
the objects for which they are respectively made and foi'2Veb
620. All sums appropriated for the various branches of Applications of
* * * moneys appro-
expenditure in the public service shall be applied solely to prj£ard3 1309 c
1 In the case of disbursing officers the policy of the Government has been to
acknowledge no payments as made on its behalf save those which are authorized by
law. Tf an officer makes a mistake of law the payment is disallowed when his
accounts come in for settlement and charged to him as if the money were still in his
hands. McKim v. U. S., 12 Ct. Cls., 504, 532. Such officers are special agents
with very limited authority. Their duties are ministerial; they are to pay the money
according to the law and the facts in each case, and if they make mistakes in either
they are personally liable themselves, and the Government may also, without doubt,
maintain an action to recover back the money from the person wrongfully receiving
it. No discretion or authority to decide controverted questions of law is intrusted to
such officers. See dissenting opinion of Eichardson, J., in McKee v. IT. S., 12 Ct. Cls.,
504, 551.
A disbursing officer is prohibited by section 3648, Revised Statutes, from paying
more than a proper proportion of the entire contract price agreed upon for the trans-
portation of public property when only a portion of the property has been delivered.
Ill Compt. Dec., 221. See, also, ibid., 187.
An advance of public money made by a paymaster of the Army to an officer
ordered to a distant station, when made by direction of the President as provided by
section 3648 of the Revised Statutes, to provide for the pay of such officer for a future
period, is not a payment for services for the correctness of which the paymaster is
responsible, but an advance of public money to the officer in question for which he,
and not the paymaster, is accountable to the United States. IV ibid., 250.
The payment of express charges in advance is prohibited by this section. Ibid, 544.
2 When an appropriation found in an annual appropriation act is made for the pur-
pose of carrying out the provisions of another law requiring immediate action, such
appropriation is available prior to the beginning of the fiscal year for the service of
which the other appropriations made in the act are intended.- I Compt. Dec. , 329.
See, also, ibid., 487.
3 When Congress makes an appropriation for a particular object, that appropriation
is exclusive, and another appropriation which but for the specific appropriation
234 MILITARY LAWS OF THE UNITED STATES.
621- A11 persons charged by law with the safe keeping,
c transfer, and disbursement of the public moneys, other
' ^nan those connected with the Post-Office Department, are
required to keep an accurate entry of each sum received
and of each payment or transfer.
might be available can not be used. I Compt. Dec., 563. When one appropriation
is available for a specific object a second appropriation can not be used fdr the same
work, unless from the second appropriation it clearly appears that it was the inten-
tion of Congress that such second appropriation should be available in addition to the
specific appropriation. Ibid., 417. When an appropriation to which an expense
is properly chargeable is exhausted, another appropriation can not be used. (Ibid.,
PECUNIARY RESPONSIBILITY OF OFFICERS.
An officer will have credit for an expenditure of money made in obedience to the
order of his commanding officer. Every order issued by any military authority
which may cause an expenditure of money in a staff department will be given in
writing. One copy thereof will be forwarded by the officer receiving it to the head
of his Department, and the other will be filed by the disbursing officer with his
voucher for the disbursement. If the expenditure be disallowed it will be charged
to the officer who ordered it. Par. 735, A. R., 1901.
Where purchases of army supplies are made in pursuance of an order issued 1 y
competent military authority, said order, or a certified copy thereof, should be fil< d
with the first voucher on which payment for supplies is made and reference be made
thereto on all the others. 3 Compt. Dec., 1, 287.
Where there is a plain direction or prohibition spread upon the statute book,1-,
which is as well known to the inferior as to a superior officer, it is clearly bindii'e;
upon both officers, and unless it can be affirmatively shown that the inferior call< d
the attention of the superior to the infringement of law in the order, and that there-
upon the superior renewed the order, the inferior officer must be held liable. Ill
Dig. Dec. 2d Compt., 9, par. 3.
If a payment made on the certificate of an officer as to the facts is afterwards dis-
allowed for error of fact in the certificate, it will pass to the credit of the disbursing
officer and be charged to the officer who gave the certificate; but the disbursing
officer can not protect himself in an erroneous payment made without due care by
charging lack of care against the officer who gave the certificate. Par. 736, Army
Regulations of 1901.
Paragraph 654 of the Army Regulations of 1895 provides that accounts paid on a
certificate and afterwards disallowed for error of fact in the certificate shall pass to
the credit of the disbursing officer and be charged to the officer who gave the certifi-
cate: Held, That it is the duty, however, of the disbursing officer to exercise the
utmost care and vigilance in the disbursement of the public funds intrusted to him,
and it is his imperative duty to see that the entire amount claimed is due and that
payment thereof is fully warranted from the data given on the muster roll or final
statement. If the information is not sufficient he must seek for more. He can not
protect himself, in an erroneous payment made without due care, by charging a simi-
lar lack of care against the officer who gave the certificate. Ill Dig. 2d Compt.
Dec., 10, par. 9.
RULES FOR THE PREPARATION OK VOUCHERS.
1. Vouchers must be stated in the name of the person, firm, company, or corpora-
tion rendering the service or furnishing the articles for which payment is made.
2. If the payee be a firm, the receipt to the voucher should be in the usual firm
signature, signed by a member of the firm; if an incorporated or unincorporated
company, the receipt should be in the company name, followed by the autograph
signature of the officer (with his title) authorized to receive the money and receipt
therefor.
3. Evidence of the authority of the officer receipting for an incorporated or unin-
corporated company must accompany the voucher, unless the payment is made by a
check drawn on a United States depository to the order of the company, and that fact,
with the date and number of the check and name of the depository, is stated in the
voucher.
4. When a disbursing officer is satisfied that an attorney or agent is authorized to
receipt for his principal, whether an individual firm, company, or corporation, the
MILITARY LAWS OF THE UNITED STATES. 235
622. Hereafter all officers, agents, or other persons ite^s°unting ^
Deceiving public moneys appropriated by this or any sub- 2/ply1153' 1884> v
sequent Army appropriation act shall account for the dis-
bursement thereof according to the several and distinct
items of appropriation expressed in such act. Act of
July 5, 1884 (23 Stat. L., 113).
receipt of the principal by the attorney or agent will be sufficient, without proof oi
authority accompanying the voucher, provided that payment is made by a check
drawn on a United States depository and payable to the order of the principal, and the
memorandum required in the preceding paragraph is made upon the voucher.
5. These regulations will not affect any additional regulations of the several Depart-
ments, but are intended as a statement of all that is required by the accounting
officers as proof that payments are made to the proper persons. Regulations of the
Comptroller of the Treasury of May 20, 1896; II Compt. Dec., 666; G. 0. 37, A. G. 0.,
1896.
The word ' ' \ oucher ' ' can not be construed as synonymous with the word ' ' receipt, ' '
it having a far broader signification in law. Any written evidence which estab-
lishes facts entitling a disbursing officer to credit is a voucher. ' ' The word ' voucher '
would seem to imply evidence, written or otherwise, of the truth of a fact. ' ' The
People v. Green, 5 Daly, N. Y., 194; 3 Compt. Dec., 378.
MONEY VOUCHERS, (a)
The term "voucher," when used in connection with the disbursement of moneys,
implies some written or printed instrument in the nature of a receipt, note, account,
bill of particulars, or something of that character, which shows on what account or
by what authority a particular payment has been made, and which may be kept or
filed away, by the party receiving it, for his own convenience or protection, or that
of the public. People v. Brinkerhoff 107, 111., 495.
The presentation by a disbursing officer of a voucher properly receipted by the
person entitled to payment is but prima facie evidence of actual payment by him, and
will not entitle him to credit unless the amount has been actually paid to the proper
person or his representative. I Compt. Dec., 228. The receipt of a witness to a
pay roll is valid although written with a pencil, and not with ink, as required by
the regulations and practice of the Department. Ibid. , 419.
What shall be considered proper vouchers and the extent and character of the
evidence necessary to support a claim must, of course, depend upon the circum-
stances of each case. I think, however, that the term "proper vouchers" must be
construed to mean the vouchers ordinarily required in the transaction of business of
this character. Presumptions should not be accepted in the place of proof where
the latter can be procured. V Compt. Dec., 140. See, also, VI ibid., 14, 97.
Every voucher signed on behalf of any person, firm, or corporation by an agent
or attorney should bear the name of the proper firm, person, or corporation, followed
by the name of the agent or attorney. 3 Dig. 2d Compt. Dec., 379.
Under a resolution of the executive committee of the Western Union Telegraph
Company passed November 24, 1886, any person in charge of any office of said com-
pany is authorized to receive and receipt for payments to said company, and receipt*
by such persons for such payments are to be held as binding upon said company.
Ibid.
Section 3477 of the Revised Statutes does not prohibit a disbursing officer from
accepting the receipt of an agent or attorney of an individual, firm, or corporation,
and receiving credit for a voucher so receipted, provided it appears thereon that the
check issued in payment was made payable to the order of the individual, firm, or
corporation. 2 Compt. Dec., 295.
An order from the court appointing a receiver and showing his authority to act as
such should be filed with or referred to in every voucher or claim presented by him
for payment. 3 Dig. 2d Compt. Dec., 378.
Receipts for small amounts for occasional service paid to corporations, such as
railroad, telegraph, turnpike, transfer, express, steamboat, hotel, newspaper, and
ice companies, may be signed by the local agent in charge of the business of t
company at the place where the service is rendered, or where it begins or terminates,
a For provisions of Army Regulations in respect to the preparation and execution of vouchers, se
paragraphs 631-652, Army Regulations of 1895.
236 MILITARY LAWS OF THE UNITED STATES.
623- Hereafter the total amount appropriated in the
various paragraphs of an appropriation act shall be de-
29, p. 148. termined by the correct footing up of the specific sums or
rates appropriated in such paragraph contained therein
unless otherwise expressly provided. Act of May Jrt.
1896 (29 Stat. •£., HO, IJfi).
^24. ^11 balances of appropriations contained in the
pr?2P?ufyT8S7o c annual appropriation bills and made specifically for the
25is. 5, v. 16, p. service of any fiscal year shall only be applied to the pay-
Sec.86»oB. s. ment of expenses properly incurred during that year, or
to the fulfillment of contracts property made within that
year; and balances not needed for such purposes shall be
and the certificate of the officer making payment that the person to whom payment
was thus made was then the local agent of the company, in charge of its business at
the place designated, will be sufficient evidence of the* agent's authority to receive
and receipt for the money paid. Ibid.
The term "small amounts," as used in the Second Comptroller's decision of March
14, 1887, applies only to occasional payments of amounts deemed too insignificant to
justify the Government in demanding written evidence of an agent's authority to
receive and receipt for moneys, in accordance with the general rule. Ibid.
All vouchers in support of payments of percentages retained under contracts musj
be accompanied, as contemplated by section 277 of the Revised Statutes, by satisfac-
tory evidence, either primary or secondary, that the several amounts thereon paid
have been retained, have since become pavable, and have not previously been paid.-
Ibid., 379.
Hereafter vouchers in support of partial payments, cr vouchers on which the reten-
tion of percentages are noted, must be made in triplicate instead of duplicate. One
of said vouchers is to be retained by the disbursing officer and the other two to be
transmitted with his accounts to the accounting officers. The two vouchers so trans-
mitted are to be examined and compared ,v hen the officer's accounts are adjusted
and settled, one of them to be subsequently withdrawn by the Auditor and filed as a
subvoucher with and in support of the voucher on which the final pavment is made.
Ibid.
It will be deemed a sufficient compliance with the requirement as to vouchers in
support of partial payments, including those on which percentages are retained, if
the vouchers intended to be withdrawn by the Third Auditor, after the necessary
action of the accounting officers thereon and filed as subvouchers with the proper
vouchers in support of final payments, be made without receipts and without copies
of any subvouchers which may be filed with the original vouchers, but complete in
all other respects and certified to by the proper officers. Ibid.
Vouchers on which percentages are retained, and which might otherwise be sus-
pended under the decisions relating to such vouchers, may be passed to the credit of
the disbursing officer or agent rendering them when the vouchers on which the
retained percentages are paid are embraced in the same settlement with those on which
the percentages are retained. Ibid., 380.
When a payment has been made to correct an error appearing in a previous voucher,
the voucher on which the error was made, or other sufficient evidence of the error,
should be transmitted with the accounts in which the disbursing officer claims credit.
Ibid.
It is within the power of the accounting officers, in the settling of accounts of
disbursing officers, where it appears that an expenditure has been made from the
wrong appropriation, if the expenditure be right in itself and correct otherwise, to
charge the amount to the appropriation for which the expenditure is liable. If at
the time of the settlement the appropriation to which the expenditure is chargeable is
exhausted, the amount should be disallowed against the disbursing officer, and he
should be required to apply to Congress for relief. 3 ibid., 36.
Where one Department receives from another Department supplies which are within
the scope of appropriations belonging to each a reimbursement of the appropriation
of the one from the appropriation of the other, of the cost of the supplies, is not a vio-
lation of section 3678, Revised Statutes; nor do the provisions of section 3618, Revised
Statutes, apply to such case. XVII Opin. Att. Gen., 480.
MILITAEY LAWS OF THE UNITED STATES. 237
carried to the surplus fund. This section, however, shall
not apply to appropriations known as permanent or indefi-
nite appropriations.1
Par.
INSPECTION OF DISBURSEMENTS.
Par.
625. Method and scope of inspection. 626. Reports to Congress.
625. It shall be the duty of the Secretary of War to ^g^tion^ of
cause frequent inquiries to be made as to the necessity, 18Ap go20' 1874' v-
economy, and propriety of all disbursements made by dis-
bursing officers of the Army, and as to their strict con-
formity to the law appropriating the money; also to ascer-
tain whether the disbursing officers of the Army comply
with the law in keeping their accounts and making their
deposits; such inquiries to be made by officers of the in-
spection department of the Army, or others detailed for
that purpose: Provided, That no officer so detailed shall
be in any way connected with the department or corps
making the disbursement.2 Act of April W, IS? % (18
Stat. L., 33.}
626. That the reports of such inspections shall be made toTc00S|ree8?°rted
out and forwarded to Congress with the annual report of sec.2,**u
the Secretary of War. Sec. 8, ibid.
DECISIONS BY COMPTROLLER IN ADVANCE OF PAYMENT.
627. Disbursing officers, or the head of any Executive s>£vsan^ dte^e
Department, or other establishment not under any of
Executive Departments, may apply for, and the Comp-
troller shall render, his decision upon any question involv-
ing a payment to be made by them or under them, which
decision, when rendered, shall govern the Auditor and the
Comptroller of the Treasury in passing upon the account
containing said disbursement.3 Sec. 8, act ofJuiySl, 1894
(28 Stat. Z.,
1 A proposal in writing to furnish supplies and a written acceptance by the author-
ized agent of the Government constitute a contract within the meaning of section
3690 of the Revised Statutes, so as to authorize the use of an appropriation for the
fiscal year in which the contract is made in paying for such portion of the supplies as
are delivered under the contract after the expiration of the fiscal year. II Compt.
Dec., 248.
2 See paragraphs 977 and 978, Army Regulations of 1901.
3 Paragraph 6, section 8, of the act of July 31 , 1894, does not authorize the Comp-
troller to render a decision in advance of the settlement of accounts, except upon
questions presented by disbursing officers or the heads of Executive Departments involv-
ing payments to be made by them! 1 Compt. Dec., 1; see also ibid., p. 87; 139, 411,
431, 500; III ibid., 529; IV ibid., 332. Nor is the Comptroller authorized to render
such advance decision until the head of a Department, having control of an appro-
priation, determines to apply it to a particular purpose. 1 ibid., 89. The Comp-
troller has no jurisdiction to "entertain such an application when made by the heafl
238 MILITARY LAWS OF THE UNITED STATES.
ASSIGNMENTS OF CLAIMS, POWERS OF ATTORNEY.
eijdmfvSdntun- ^28. All transfers and assignments made of any claim
^Feb^'e 1853 c uPon the United States, or_of any part or share thereof,
So-8 Joivz^ikS T)r interest therein, whether absolute or conditional, and
c's«c !{497'7pR41y whatever may be the consideration therefor, and all powers
of attorney, orders, or other authorities for receiving pay-
ment of any such claim, or of any part or share thereof,
shall be absolutely null and void, unless they are freely
toade and executed in the presence of at least two attest-
ing witnesses, after the allowance of such a claim, the
ascertainment of the amount due, and the issuing of a
warrant for the payment thereof. Such transfers, assign-
ments, and powers of attorney must recite the warrant
for payment, and must be acknowledged, by the person
making them, before an officer having authority to take
acknowledgments of deeds, and shall be certified by the
officer; and it must appear by the certificate that the
officer, at the time of the acknowledgment, read and fully
explained the transfer, assignment, or warrant of attorney
to the person acknowledging the same.1
of a bureau in an Executive Department. 1 ibid., 199. Nor when the request comes
from the head of one Executive Department in respect to an appropriation under the
head of another Executive Department. 1 ibid., 317.
Requests for the decision of the Comptroller, under section 8 of the act of July 31,
1894, must be made by the disbursing officer himself and not by an attorney authoi*-
ized to represent him in the settlement of his accounts. I ibid., 502.
When an expense has not yet been incurred, and a decision of the Comptroller is
desired for the guidance of a Department, the request therefor should be presented
by the head of the Department having control of the appropriation, and not by the
disbursing officer. I ibid., 500.
The Comptroller of the Treasury is not authorized to render decisions to disbursing
officers upon questions of law pertaining to payments which have been made by
them. V Comp. Dec., 727.
The Comptroller of the Treasury is not authorized to render to the heads of Depart-
ments advisory opinions upon questions of law not involving payments to be made
by or under them. Ibid., 653.
A statement by the Comptroller of the Treasury in an advance decision, upon a
statement of facts submitted by a disbursing officer, which is broader than the facts
stated rendered necessary, is a mere dictum and is not binding upon the Auditor or the
Comptroller in the settlement of the account of the disbursing officer. V ibid., 562.
Under the act of July 31, 1894, the Auditors of the Treasury are not authorized to
render decisions in advance of the settlement of accounts, such authority being, by
section 8 of said act, granted only to the Comptroller of the Treasury. I ibid., 94.
1 The accounting officers of the Treasury will not approve powers of attorney to
demand and receive moneys due upon claims against the United States when such
powers are not executed in accordance with the provisions of section 3477 of the
Revised Statutes. 1 Compt, Dec., 142. Section 3477 of the Revised Statutes, mak-
ing null and void all assignments and powers of attorney to collect any claim or
demand against the Government (unless the power of attorney is given after the
settlement of the claim and the issuance of the warrant in payment) applies to liqui-
dated, certain, and undisputed demands as well as to those which are unliquidated,
uncertain, or disputed. Ibid., 276. Und^rthe decisions of the courts the account-
ing officers are required, notwithstanding the pro visions of section 3477 of the Revised
Statutes, to credit disbursing officers with payments actually made by them under
powers of attorney, provided it is shown that, at the time of such payment, such
MILITARY LAWS OF THE UNITED STATES. 239
COUNTERFEIT MONEY.
629. All United States officers charged with the receipt n^e8udtUolebe
or disbursement of public moneys, and all officers of?,t*m?e<? ,,as
national banks, shall stamp or write in plain letters the,j£c-5jJune3°'
7 » 1876, V. 19, p. 64.
word "counterfeit," ''altered," or "worthless" upon all
fraudulent notes issued in the form of and intended to cir-
culate as money which shall be presented at their places
of business; and if such officers shall wrongfully stamp
any genuine note of the United States, or of the national
banks, they shall, upon presentation, redeem such notes at
the face value thereof. Sec. 5, act of June 30, 1876 (19
Stat. Z., 64).
PRESENTATION OF DRAFTS.
630. It shall be the duty of the Secretary of the Treasury ^££$££Z
to issue and publish regulations to enforce the speedy pres- of^ftg'31 <$
entation of all Government drafts, for payment, at the sec. seis, B. s.
place where payable, and to prescribe the time, according
to the different distances of the depositaries from the seat
of government, within which all drafts upon them, respec-
tively, shall be presented for payment, and, in default of
such presentation, to direct any other modj and place of
payment which he may deem proper; but, in all these regu-
lations and directions, it shall be his duty to guard, as far
powers are undisputed and have not been revoked, either by the voluntary action of
the principal or by his death. Ibid., 142, 431.
The assignment of a quartermaster's voucher, unless made " after the allowance of
such a claim" and in conformity with all the other requirements of section 3477 of
the Revised Statutes, is "absolutely null and void." The exigencies of the war and
of the Government service immediately after the war, which at one time were relied
upon to support the practice of paying the assignees of such vouchers, can not be
made available in deciding cases now arising. 3 Dig. 2nd Compt. Dec., 156.
Transfers and assignments of claims. — The restrictions of the Comptroller of the
Treasury in regard to the allowance of credits to disbursing officers for payments
made by them on powers of attorney or other forms of transfer or assignment being
so great as to amount practically to a prohibition of such payments, disbursing offi-
cers will refuse to pay the assignee of any claim, except as to assignments authorized
by paragraphs 1300 and 1388 of the Army Regulations of 1895.
When claims or vouchers which have been assigned are presented for payment,
the holders will be informed that disbursing officers have no authority to make pay-
ments to them as assignees, and that payments can only be made to the original
persons to whom the money is due. Decision Asst. Sec. War, Nov. 7, 95 — 27033,
A. G. O., 95. Circ. 13, A. G. 0., 1895.
Assignments of, pay by officers and enlisted men. — The assignment of their pay accounts
by any officers, after the same become due, is authorized by paragraph 1300, Army
Regulations of 1895, and is legal. Ill Second Compt. Dec., 45; ibid., 47. Such
transfers are accomplished in accordance with paragraphs 1300 and 1388, Army Regu-
lations of 1895. For a full discussion of the subject of assignments see notes to para-
graph 196 ante.
Attachments. — An attachment can not be enforced against public money in the
hands of a disbursing officer of the Government, and he is authorized to pay the
Government's creditor without regard to such attempted levy. I Compt. Dec., 171;
Buchanan v. Alexander, 4 How., 20.
240
MILITARY LAWS OF THE UNITED STATES.
as may be, against those drafts being used or thrown into
circulation as a paper currency or a medium of exchange.
(See sees. 5495, 5496, E. 8.}
LOST CHECKS — DUPLICATE CHECKS.
sto?eenkor10de- 631< Whenever any original check is lost, stolen, or
t^estroye(^' disbursing officers and agents of the United
" States are authorized, after the expiration of six months,
oo™' 1885> v* and within three years from the date of such check, to
^o, p. oUo*
Sec. 3646, K. s. issue a duplicate check; and the Treasurer, assistant treas-
urers, and designated depositaries of the United States
are directed to pay such duplicate checks, upon notice and
proof of the loss of the original checks, under such regu-
lations in regard to their issue and payment, and upon the
execution of such bonds, with sureties, to indemnify the
United States, as the Secretary of the Treasury shall pre-
scribe. This section shall not apply to any check exceed-
ing in amount the sum of twenty -five hundred dollars.1
Act of February 16. 1895 (23 Stat. Z., 306).
case ^ne disbursing officer or agent by whom such
> destroyed, or stolen original check was issued is dead,
or no longer in the service of the United States, it shall
be the duty of the proper accounting officer, under such
regulations as the Secretary of the Treasury shall pre-
scribe, to state an account in favor of the owner of such
original check for the amount thereof, and to charge such
amount to the account of such officer or agent.1
ceFebd7a<i872 c
''
ACCOUNTS AND ACCOUNTING.
Par.
632. Accounts settled in the Treasury.
633. Forms of accounts.
Par.
634. Rules by heads of departments.
635. The fiscal year.
settiSHn tothe 632< A11 claims and demands whatever by the United
Ts>cSU236 K s States or against them, and all accounts whatever in which
aThe following paragraph of the Army Regulations of 1901 prescribes a method of
procedure in the case of a check which has been lost or destroyed:
"When an original check of a disbursing officer, not exceeding $2,500 in amount,
has been lost or destroyed, a duplicate check may be issued by him, after six months
and within three years of the date of the original, upon the owner filing with him
the notice and proof of loss and the indemnity bond required by sections 3646 and
3647, Revised Statutes, and act of February 16, 1885. In case the disbursing officer
who issued the original check is no longer in the service, the notice and proof of loss
and the indemnity bond will be sent to the Secretary of the Treasury prior to the
issue of a duplicate check. The proper accounting officer of the Treasury will state
an account in favor of the owner of said check and charge the amount thereof to the
account of such officer. Instructions for the execution and use of the affidavit and
bond, and the issue of the duplicate check, accompany the blank form furnished by
the Treasury Department." Par. 681.
MILITARY LAWS OF THE UNITED STATES. 241
the United States are concerned, either as debtors or as
creditors, shall be settled and adjusted in the Department
of the Treasury.
FORMS OF KEEPING AND RENDERING ACCOUNTS.
633. The Comptroller of the Treasury shall, under
direction of the Secretary of the Treasury, prescribe theet5^ly31 im s
forms of keeping- and rendering all public accounts, 5> v- M' P- 206-
except those relating to the postal revenues and expend-
itures therefrorp-1 Sec. 5, act of July 31, 1894 (%$ Stat.
634. It shall also be the duty of the heads of the several
Executive Departments, and of the proper officers of other
Government establishments not within the jurisdiction of22- v- 28'1'- L>06-
any Executive Department, to make appropriate rules and
regulations to secure a proper administrative examination
of all accounts sent to them, as required by section twelve
of this act, before the transmission to the Auditors, and
for the execution of other requirements of this act in so
far as the same relate to the several Departments or estab-
lishments. 2 Sec. 2°2, act of July 31, 189 Jf (28 Stat. L. ,
635. The fiscal year of the Treasury of the United States commence-
^ ment of fiscal
in all matters of accounts, receipts, expenditures, esti-yegj; l
mates, and appropriations, except accounts of the Secre- 9> J;26'^6^' s
tary of the Senate for compensation and traveling expenses
of Senators, and accounts of the Sergeant-at-Arms of the
House of Representatives for compensation and mileage
of Members and Delegates, shall commence on the first day
of July in each year; and all accounts of receipts and
JFor other statutory provisions in respect to accounts, see the titles " The Comp-
troller of the Treasury" and " The Auditors of the Treasury," in the chapter entitled THE
DEPARTMENT OF THE TREASURY.
Public accounts, within the meaning of section 5 of the act of July 31, 1894, which
provides that the Comptroller of the Treasury shall "prescribe the form of keeping
and rendering aii public accounts?," are accounts in. which the United States is con-
cerned either as debtor or creditor. VI Compt. Dec., 35.
Our scheme or government includes an accounting system, with proper officers
thereof, and it seems reasonable to conclude that when the law provides for an
accounting, and makes no special provision therefor, it was the legislative intent
that the accounting should be done in the usual manner — that is, by the accounting
officers of the Treasury Department. Ibid., 283, 284.
The act of July 31, 1894, specifically devolves upon the accounting officers of the
Treasury the particular duties of examining the public accounts and certifying bal-
ances arising thereon; and their exercise of those duties, including the weighing of
evidence, the construction of statutes, and the application of general principles of
law in connection therewith, is exclusive. V Ibid., 410.
All accounts for the expenditure of public moneys should be itemized so far as
practicable, and a discretion given to the officer having control of an appropriation
does not dispense with this requirement. IV Ibid., 159.
2 For regulations respecting the administrative examination of money accounts in
the War Department, see paragraphs 737, 738, Army Regulations of 1901.
22924—08 16
242 MILITARY LAWS OF THE UNITED STATES.
expenditures required by law to be published annually
shall be prepared and published for the fiscal year, as thus
established. The fiscal year for the adjustment of the
accounts of Secretary of the Senate for compensation and
traveling expenses of Senators, and of the Sergeant-at-
Arms of the House of Representatives for compensation
and mileage of Members and Delegates, shall extend to and
include the third day of July. Sec. 9, act of Octobw 1,
1890(26 Stat. Z., 646).
RENDITION OF ACCOUNTS.
Par. Par.
636. Monthly accounts required. 638-640. Transmission of accounts; rules;
637. Distinct accounts under separate delays.
heads of appropriation. 641. Report of delinquents.
Accounts. 636. Every officer or aerent of the United States who
July 17, 1862, c. \ .
199, s. i, v. 12, p. receives public money which he is not authorized to retain
593: Mar. 2, 1867, - .
res. 48, v. 14, p. as salary, pay, or emolument shall render his accounts
571; July 15, 1870, • *• *W; • • i i
c. 295, s. 15, v.ie, monthly. Such accounts, with the vouchers necessary to
1877, c.' 69, v! 19! the correct and prompt settlement thereof, shall be sent
p. 249; July 81,, ., . J ' . , ,,
1894, v. 28, p. 206. by mail, or otherwise, to the bureau to which they per-
Sec.3622,H.S. J. J J
tain within ten days after the expiration of each succes-
sive month, and, after examination there, shall be passed
to the proper accounting officer of the Treasury for settle-
ment.2
* •* * -X- *
In case of the nonreceipt at the Treasury or proper
bureau of any accounts within a reasonable and proper
time thereafter, the officer whose accounts are in default
1 The forms for the rendition of accounts are prescribed by the Comptroller of the
Treasury. See, also, section 4 of the act of August 30, 1890(26 Stat, L., 413), which
required such accounts to be rendered quarterly. The requirement of section 4,
act of August 30, 1890 (26 Stat. L., 413), that accounts opened thereafter be rendered
quarterly, was repealed by section 6 of the act of July 31, 1894 (28 Stat, L., 206) .
2 An account is something which may be adjusted and liquidated by an arithmet-
ical computation. One set of Treasury officers examine and audit the accounts;
another set is intrusted with the power of reviewing that examination and with the
further power of determining whether the laws authorize the payment of the
account when liquidated. But no law authorizes Treasury officials *to allow and
pass in accounts a number not the result of arithmetical computation upon a sub-
ject within the operation of the mutual part of a contract, rower v. U. S., 18 Ct.
Cls., 263, 275. A voucher given by an officer of the Government, in the regular
and ordinary course of his business, for services rendered or articles purchased for
the public service, within the scope of his authority and the line of his duty
unimpeached, is prima facie evidence of indebtedness on the part of the United
States, as therein stated. Parish v. U. S., 2 Ct. Cls., 341; Solomon /•. U. S., 19
Wall., 17, and 9 Ct. Cls., 54. In this respect the executive officers who are
authorized to make contracts, employ services, or purchase property for the public
service, and whose duty it is to see to it that the money certified by them to be due
has been actually and fairly earned, within their own knowledge, while acting in
their official capacity, differ from the certified balances of the accounting officers.
MILITAEY LAWS OF THE UNITED STATES. 243
shall be required to furnish satisfactory evidence of hav-
ing complied with the provisions of this section. Nothing
herein contained shall, however, be construed to restrain
the heads of any of the Departments from requiring such
other returns or reports from the officer or agent, subject
to the control of such heads of Departments, as the public-
interest may require.
637. All officers, agents, or other persons receiving pub- Distinct ac-
' . r , counts required
lie monevs shall render distinct accounts of the application under separate
•* . . heads of appro-
thereof , according to the appropriation under which the pnation.
r Mar. 3, 1809, c.
same may have been advanced to them. • 28, s. i, v. 2, P.
638. All monthly accounts shall be mailed or otherwise Transmission
of monthly, etc.,
sent to the proper officer at n ashington within ten days accounts.
after the end of the month to which they relate, and quar- 1894, v. 28, p. 209!
, . ^ M&r« 2, 1901, v.
terly and other accounts within twenty days after the^i, P. 910.
period to which they relate, and shall be transmitted to and
received by the Auditors within sixty days of their actual
receipt at the proper office in Washington in the case of
monthly, and sixty days in the case of quarterly and other
accounts. Should there be any delinquency in this regard
at the time of the receipt by the Auditor of a requisition
for an advance of money, he shall disapprove the requisi-
tion, which he may also do for other reasons arising out of
the condition of the officer's accounts for whom the ad-
vance is requested; but the Secretary of the Treasury may
overrule the Auditor's decision as to the sufficiency of these
latter reasons. Sec. 1%, act of July 31, 1894 (28 Stat. L..
209); act of March 2, 1901 (31 ibid., 910).
In the examination of claims in the Treasury Department these accounting officers
act wholly upon the evidence presented to them by others, and have themselves no
personal knowedge of the facts upon which the claims are founded. It is one of the
fundamental principles upon which that Department is established — and a useful and
nice one it is — that the executive officers who pass upon public accounts shall be
different from those who are authorized to make contracts and incur liabilities in
the expenditure of public money. McCann v. U. S., 18 Ct. Cls. 445, 447. The
accounts under a contract remain open so long as anything remains to be adjusted
or paid. Parker v. U. S., 26 Ct. Cls. 344.
The first clause of section 3622 of the Revised Statutes, which requires the rendi-
tion of accounts monthly, is applicable to every officer who receives advances of
public money to be disbursed, and also to every officer who collects and receives
fees and revenues which it is his duty to account for. XIX Opin. Att. Gen., 557.
The requirement that officers render their accounts monthly is not subject to the
direction of the Secretary of the Treasury, excepting in extraordinary cases, where
he shall be of opinion that the statutory period ought to be enlarged to meet the
special circumstances of such cases. XIX Opin. Att. Gen., 557.
For other statutory regulations in respect to the disbursement of and accounting
for the public moneys, see sections 3643, 3648, 3678, and 3679 of the Revised Statutes,
paragraphs 617, 619, 620, and 621 ante; see, also, the acts of July 5, 1884 (23 Stat. L.,
113) , and May 28, 1896 (29 ibid., 148), paragraphs 622, and 623 ante. For a definition
of the term "account" as used in connection with the receipt and disbursement of
the public money, see note 3, supra.
244 MILITARY LAWS OF THE UNITED STATES.
639« The Secretary of the Treasury shall prescribe suit-
rules anc^ regulations, and may make orders in par-
counts. ticular cases relaxing the requirement of mailing or other-
wise sending accounts as aforesaid within ten or twenty
days, or waiving delinquency, in such cases only in which
there is, or is likely to be, a manifest physical difficulty
in complying with the same, it being the purpose of this
provision to require the prompt rendition of accounts
without regard to the mere convenience of the officers,
and to forbid the advance of money to those delinquent
in rendering them. Ibid.
m? ftlVg sac- 640< Should there be a delay by the administrative
counts. Departments beyond the aforesaid twenty or sixty days in
transmitting accounts, an order of the President [or, in
the event of the absence from the seat of government or
sickness of the President, an orcfer of the Secretary of the
Treasury] in the particular case shall be necessary to author-
ize the advance of money requested : And provided further^
That this section shall not apply to accounts of the postal
revenue and expenditures therefrom, which shall be ren-
dered as now required by law.1 Ibid.
1 Amended by the insertion of the clause in brackets by section 4 of the act of
March 2, 1895 (28 Stat. L., 807).
Under the authority vested in him by this statute, the Secretary of the Treasury
relaxed the requirements in respect to the mailing of accounts by extending the
time of mailing the accounts of disbursing officers as set forth therein.
Such period of relaxation was still further extended to December 31, 1900 (see Gen-
eral Orders, No. 211, A. G. 0., of December 29, 1899, and the orders therein cited ).
Under this permission the date of mailing as fixed by A. R. 709, has been tempo-
rarily changed to the 20th day of each month for all accounts, whether rendered in
this country or in the island possessions.
The exigency which required this temporary change having now ceased in the
Subsistence Department at all depots, posts, and stations in the United States,
except at the purchasing depots at New York, Chicago, and San Francisco, the
relaxation of the law as to time of rendition of accounts is hereby withdrawn to take
effect May 1, 1900, from all but the excepted depots, and accounts will thereafter be
mailed on or before the 10th day of the month as required by A. R. 627. At the
excepted depots the mailing of accounts may continue to be delayed until the 20th
day of the month until further orders, or until December 31, 1900*
In the island possessions of Cuba, Porto Rico, and Hawaii the relaxation is hereby
withdrawn as of date May 1, 1900, from all officers in those islands engaged in the
receipt or disbursement of subsistence funds, and their accounts will thereafter be
mailed on or before the 10th day of the month, as required by A. R. 709.
The mailing of the accounts of officers receiving and disbursing subsistence funds in
the Philippines may continue to be delayed until the 20th day of the month nntil
further orders, or until December 31, 1900.
Officers receiving and disbursing subsistence funds on United States transports will,
after May 1, 1900, mail their accounts and returns at the port at which they may be
when the ten days' limit will expire, or, if they should be at sea when the ten days'
limit expires, they will mail their accounts and returns at the next United States or
island port at which a stop is made.
Returns of subsistence stores ana subsistence property will be rendered and mailed
at all places concurrently with the rendering and mailing of accounts current and
vouchers.
An officer delinquent in mailing his subsistence account current and vouchers or
his returns within the time hereinabove limited will transmit with them at the time
MILITARY LAWS OF THE UNITED STATES. 245
REPORT OF DELINQUENTS.
641. The Secretary of the Treasury shall, on the first Trsecretary of
Monday of January in each year, make report to Congress p?«rt delinquent
IT.." officers.
o± such officers and administrative departments and offices 18f JV-^m
of the Government as were, respectively, at any time dur-
ing the last preceding fiscal year delinquent in rendering
or transmitting accounts to the proper offices in Washington
and the cause therefor, and in each case indicating whether
the delinquency was waived, together with such officers,
including postmasters and officers of the Post-Office De-
partment, as were found upon final settlement of their
accounts to have been indebted to the Government, with
the amount of such indebtedness in each case, and who, at
the date of making report, had failed to pay the same into
the Treasury of the United States. l Sec. 4, act of May 28,
1896(29 Stat. L., 179).
REVISION OF ACCOUNTS.
642. The balances which may from time to time be Balances, con-
certified by the Auditors to the division of bookkeeping ter- Revision by
, Ai TI Comptroller.
and warrants, or to the Postmaster-General, upon the July 31, 1394, s.
settlement of public accounts, shall be final and conclusive
upon the executive branch of the Government, except that
any person whose accounts have been settled, the head of
an Executive Department to which the account pertains,
or the Comptroller of the Treasury, may, within a year,
obtain a revision of the said account by the Comptroller
of the Treasury, whose decision upon such revision shall
be final and conclusive upon the executive branch of the
Government: Provided, That the Secretary of the Treas-
ury may, when in his judgment the interests of the Gov-
ernment require it, suspend payment and direct the
reexamination of any account.2 Sec. 8, act of July 31,
1894(28 Stat. Z., 207).
of mailing a full explanation of the causes of delay for the action of the proper
authorities. G. 0. 42, A. G. O., 1900.
The time for examination of monthly accounts by the bureaus and offices of the
War Department after the date OA actual receipt and before transmitting the same to
the Auditor for the War Department was extended from twenty to sixty days for the
period of one year from December 20, 1899, by the act of December 20, 1899 (31
Stat. L., 1.)
'This provision replaces the requirement of section 12 of the act of July 31. 1894
(28 Stat. L., 209), that "the Secretary of the Treasury shall, on the first Monday in
January in each year, make report to Congress of such officers as are then delinquent
in the rendering of their accounts, or in the payment of balances found due from
them for the last preceding fiscal year."
2 (1) The Auditor, in the first instance, has the original and exclusive jurisdiction
to receive, examine, and settle all accounts.
(2) The Comptroller is without jurisdiction to entertain any claim not previously
246 MILITARY LAWS OF THE UNITED STATES.
SUITS FOR RECOVERY OF MONEY,
money torecover 643. Whenever any person accountable for public money
a^Y'v "i"97^' neglects or refuses to pay into the Treasury the sum or
sec. 3624, B. s. balance reported to be due to the United States upon the
adjustment of his account, the Comptroller of the Treas-
ury shall institute suit for the recovery of the same, adding
to the sum stated to be due on such account the commis-
sions of the delinquent, which shall be forfeited in every
instance where suit is commenced and judgment obtained
thereon, and an interest of six per centum per annum from
the time of receiving the money until it shall be repaid
into the Treasury.1
passed upon and settled by the Auditor, and, until the Auditor has settled the
account, the Comptroller is without jurisdiction to revise it.
(3) The settlement of an account by the Auditor, so far as the claimant's right or
power before the accounting officers is concerned, is final and conclusive, except that
any person whose account may have been settled by the Auditor may, within a year,
obtain a revision of said account by the Comptroller.
(4) The person who may obtain such revision is the person whose account has been
settled by the Auditor. V Compt. Dec., 333, 334.
The Comptroller has the exclusive right to reopen an account which has been
revised by himself or his predecessors. IV Compt. Dec., 303. After the expiration
of a year from the date of settlement an Auditor has the exclusive right to reopen an
account settled by himself or his predecessors. Ibid. Before the expiration of a
year the right of revision by the Comptroller is exclusive, and an Auditor can not
reopen an account within that period. Ibid. After the expiration of six months
from the date of settlement by the Second Auditor, under the act of July 1,1892 (27
Stat. L., 194), no appeal having been taken within that period, the Auditor fo the
War Department has the exclusive right to reopen the settlement. Ibid, 471.
Section 8 of the act of July 31, 1894, specifies the officers and persons by whom the
revision of accounts by the Comptroller may be obtained, and it must be construed
to be exclusive. IV Compt. Dec., 723. Under section 8 of the act of July 31, 1894,
the Comptroller of the Treasury is authorized to revise, upon his own motion, all
items embraced in an account, including items upon which payment has been
accepted; and in particular instances, where justice requires it, such authority may
be exercised in favor of a claimant. Ibid, 22.
The accounting officers are not authorized to reopen accounts which have been
settled, except for the purpose of correcting mistakes of fact arising from errors of
calculation, or upon the production of newly discovered material evidence. VI
Compt. Dec., 236. The accounting officers are not authorized to reopen accounts for
the purpose of correcting decisions upon questions of law subsequently held to be
erroneous. Ibid, 91.
The right of the accounting officers to reopen accounts which have been settled,
either by themselves or their predecessors, for the purpose of correcting mistakes of
fact arising from errors of calculation, or upon the production of newly discovered
material evidence, or for fraud or collusion, has received the sanction of the courts
and of the law-making power. The actof July 31, 1894, does not take away or modify
that right, IV Compt. Dec., 303.
Where the Comptroller has made a final settlement of a claim from the War
Department, an order of the Secretary that the accounts be reexamined has no validity.
B. & O. R, R. Co. v. U. S. 31, Ct. Cls., 484.
1 For other statutory provisions respecting the recovery of debts or balances due the
United States, see the titles "The Comptroller of the Treasury" and "The Auditors
of the Treasury" in the chapter entitled THE TREASURY DEPARTMENT, and the title
"Distress Warrants" in the chapter entitled THE PUBLIC MONEY. See also U. S. v.
Gaussen, 19 Wall., 198.
MILTTAEY LAWS OF THE UNITED STATES.
247
MISCELLANEOUS OFFENSES IN CONNECTION WITH THE SAFE-KEEPING
AND DISBURSEMENT OF THE PUBLIC MONEY.
Par.
655. The same; penalty.
656. Officers not to be interested in claims;
penalty.
657. Accepting bribe; penalty.
658. The same; penalty.
659. Contracting beyond appropriation;
penalty.
660. Embezzlement, larceny, etc.; pen-
alty.
661 . Receiving em bezzled money or prop-
erty; penalty.
Par.
644. Short payments.
645. Unlawful depositing, loaning, con-
version, etc.
646. Failure to safely keep public money.
647. The same.
648. Failure to render accounts.
649. Failure to deposit as required.
650. The same; penalty.
651. Record evidence of embezzlement.
652. Refusal to pay draft.
653. Evidence of conversion.
654. Unlawfully receiving money by
banker, etc.
644. Every officer charged with the payment of any of re^e?ptingffor
the appropriations made by any act of Congress who pay s
to any clerk, or other employee -of the United States, a
sum less than that provided by law, and requires such23|ec >
employee to receipt or give a voucher for an amount greater
than that actually paid to and received by him, is guilty
of embezzlement, and shall be fined in double the amount
so withheld from any employee of the Government, and
shall be imprisoned at hard labor for the term of two years.
EMBEZZLEMENT.
10
645. Every disbursing officer of the United States
deposits any public money intrusted to him in any place
or in any manner except as authorized by law, or converts pubiicamofney.ng
to his own use in any way whatever, or loans with or with- 122U"e2| Vuf'p!
out interest, or for any purpose not prescribed by law 64^ec .6488,B.s.
withdraws from the Treasurer or any- assistant treasurer
or any authorized depository, or for any purpose not pre-
scribed by law transfers or applies any portion of the public
money intrusted to him, is, in every such act, deemed guilty
of an embezzlement of the money so deposited, converted,
loaned, withdrawn, transferred, or applied, and shall be
punished by imprisonment with hard labor for a term not
less than one year nor more than ten years, or by a fine of
not more than the amount embezzled or less than one thou-
sand dollars, or by both such fine and imprisonment. (See
sees. 3620, 5497, R. 8.)
646. If the Treasurer of the United States, or any assist
ant treasurer, or any public depositary, fails safely to keepjjj,
all moneys deposited by any disbursing officer or disburs- uJfSf'f ^J p.'
ing agent, as well as all moneys deposited by any receiver, 24|ec> 5489,B.s.
248 MILITARY LAWS OF THE UNITED STATES.
collector, or other person having moneys of the United
States, he shall be deemed guilty of embezzlement of the
moneys not so safely kept, and shall be imprisoned not less
than six months nor more than ten years, and fined in a
sum equal to the amount of money so embezzled. (See sec.
3639, It. 8.)
custodians of 647. Every officer or other person charged by any act of
keeingwitifoeut^on^ress w^ ^e safe"keeping of the public moneys, who
loaning, etc. fails to safely keep the same, without loaning, using, con-
Aug. 6, 1846, c. . J ...
90, s. 16, v. 9, p. verting to his own use, depositing in banks, or exchanging
Sec. 5490, R.S. for other funds than as specially allowed by law, shall
be guilty of embezzlement of the money so loaned, used,
converted, deposited, or exchanged, and shall be imprisoned
not less than six months nor more than ten years, and fined
in a sum equal to the amount of money so embezzled.1
(See sec. 3639, R. S.)
Failure of offi- 648. Every officer or agent of the United States who,
cer to render ac- . . ^ . .
counts, etc. navinsf received public monev which he is not authorized
July 17, 1862, c. J
199, s. i, v. 12, p. to retain as salary, pay, or emolument, fails to render his
593; Mar. 2, 1867, . J ' ^ J '
Res. 48, v. 14, p. accounts for the same as provided bv law, shall be deemed
571; July 15, 1870, - ' .
c. 295, s. is, v. 16, guilty of embezzlement, and shall be fined in a sum equal
1846, c. 90, s.' iej to the amount of the money embezzled, and shall be im-
'sec. 549i,B.s. prisoned not less than six months or more than ten years.2
(See sees. 3622, 3633, E. S.)
649. Every person who, having moneys of the United
ii sv!,' p! States in his hands or possession, fails to make deposit of
ySrtffiVop^8 same with the Treasurer, or some assistant treasurer,
^sec. 5492,R.s. or some public depositary of the United States, when re-
quired so to do by the Secretary of the Treasury or the
head of any other proper Department, or b}^ the account-
ing officers of the Treasury, shall be deemed guilty of em-
bezzlement thereof, and shall be imprisoned not less than
six months nor more than ten years, and fined in a sum
equal to the amount of money embezzled.
1 It is a defense to a charge (under the 62d article) of the embezzlement defined
in section 5490 of the Revised Statutes as consisting in a failure to safely keep public
moneys by an officer charged with the safe-keeping of the same that the funds
alleged to have been embezzled were, without fault on the part of the accused, lost in
transportation or fraudulently or feloniously abstracted. Dig. Opin. J. A. G., par. 155.
2 In view of the injunction and definition of sections 3622 and 5491 of the Revised
Statutes, an officer who, in his official capacity, receives public money (not pay or
allowances) which he fails duly to account for to the United States is guilty of embez-
zlement. The statute makes no distinction as to the sources from which the money
is derived or the circumstances of its receipt. Nor is it material whether or not the
officer actually converted it to his own use or what was the motive of his disposition
of it. So, held, that an officer who, having claimed and exacted certain moneys from
Government contractors for alleged liabilities on their part, failed to pay the same
into the Treasury or to duly account therefor, was guilty of embezzlement under the
ninth paragraph of article 60. Dig. Opin. J. A. G.. par. 156.
MILITARY LAWS OF THE UNITED STATES. 249
650. The provisions of the five preceding sections
be construed to apply to all persons charged with the saf e-
keeping, transfer, or disbursement of the public money, 9oAgufg
whether such persons be indicted as receivers or deposita- sec.54<m,R.s.
ries of the same. (See sees. 3615-3652e, R. 8.)
651. Upon the trial of any indictment against any per-
son for embezzling public money under the provisions of Zl^ent6 1846 c
the six preceding sections, it shall be sufficient evidence,
for the purpose of showing a balance against such person,
to produce a transcript from the books and proceedings of
the Treasury, as required in civil cases, under the provi-
sions for the settlement of accounts between the United
States and receivers of public money.1 (See sees. 36%5,
3633, E. S.)
652. The refusal of any person , whether in or out of office, drf ff prima^S
charged with the safe-keeping, transfer, or disbursement of blzzfemenf em
the public money, to pay any draft, order, or warrant drawn |e'?5495,R.s.
upon him by the proper accounting officer of the Treasury,
for any public money in his hands belonging to the United
States, no matter in what capacity the same may have been
received or may be held, or to transfer or disburse any such
money promptly, upon the legal requirement of any author-
ized officer, shall be deemed, upon the trial of any indict-
ment against such person for embezzlement, as prima facie
evidence of such embezzlement.2 (See sec. 3644, R- &)
653. If any officer charged with the disbursement of the convSlfon6 °f
public moneys accepts, receives, or transmits to the Treas- see?5496,B.s.
ury Department, to be allowed in his favor, any receipt or
voucher from a creditor of the United States, without
having paid to such creditor in such funds as the officer
received for disbursement, or in such funds as he may be
authorized to take in exchange, the full amount specified
in such receipt or voucher, every such act is an act of con-
version bv such officer to his own use of the amount
specified in such receipt or voucher. (See sec. 365%, R. /S.)
1 U. S. v. Gaassen, 19 Wallace, 198.
2 Section 5495 of the Revised Statutes provides that the refusal of any person charged
with the disbursement of public moneys promptly to transfer or disburse the funds
in his hands, "upon the legal requirement of an authorized officer, shall be deemed,
upon the trial of any indictment against such person for embezzlement, as prima
Jade evidence of such embezzlement." Applying this rule to a military case, it is
clear that in the event of such a refusal by a disbursing officer of the Army the
burden of proof would be upon him to showr that his proceeding was justified and
that it would not be for the prosecution to show what had become of the funds. So,
where an acting commissary of subsistence, on being relieved, failed to turn over the
public moneys to his successor, or to his post commander, when ordered to do so, or
to produce such moneys, exhibit vouchers for the same, or otherwise account for
their use, when required to do so by the department commander, held, that he was
properly chargeable with and convicted of embezzlement under this article (sixtieth
article of war). Dig. Opin. J. A. G., par. 114.
250 MILITARY LAWS OF THE UNITED STATES.
654> Every banker, broker, or other person not an author-
to^ benembezzice- ^ze<^ depositary of public moneys, who knowingly receives
mjune 14 1866 ^ rom an}7 disbursing officer, or collector of internal revenue,
P. ef! ' s' 3' v' H> or °ther agent of the United States, any public money on
Sec. 5497, B.s. deposit, or by way of loan or accommodation, with or with-
out interest, or otherwise than in payment of a debt against
the United States, or who uses, transfers, converts, appro-
priates, or applies any portion of the public money for any
purpose not prescribed by law, and every president, cash-
ier, teller, director, or other officer of any bank or banking
association, who violates any of the provisions of this sec-
tion, is guilty of an act of embezzlement of the public money
so deposited, loaned, transferred, used, converted, appro-
priated, or applied, and shall be punished as prescribed in
section fifty-four hundred and eighty-eight.
The same. 655. And any officer connected with, or employed in, the
' internal-revenue service of the United States, and any as-
sistant of such officer, who shall embezzle or wrongfully
convert to his own use any money or other property of
the United States, and any officer of the United States, or
any assistant of such officer, who shall embezzle or wrong-
fully convert to his own use any money or property which
may have come into his possession or under his control in
the execution of such office or employment, or under color
or claim of authority as such officer or assistant, whether
the same shall be the money or property of the United
States or of some other person or party, shall, where the
offense is not otherwise punishable by some statute of the
United States, be punished by a tine equal to the value of
the money and property thus embezzled or converted, or
by imprisonment not less than three months nor more than
ten years, or by both such tine and imprisonment. Act of
February 3, 1879 (80 Stat. Z., 880).
in°t?rS?teedCin 65^f Every °fficer of the United States, or person hold-
clFebS>26 1853 c *n£ any P^ace °^ trust or protit, or discharging any official
si , s. 2, v. 10, p. function under or in connection with any Executive De-
sec.5498, U.S. partment of the Government of the United States, or under
the Senate or House of Representatives of the United
States, who acts as an agent or attorney for prosecuting
any claim against the United States, or in any manner or
by any means, otherwise than in discharge of his proper
official duties, aids or assists in the prosecution or support
of any such claim, or receives any gratuity, or any share
of or interest in any claim from any claimant against the
United States, with intent to aid or assist, or in considera-
MILITARY LAWS OF THE UNITED STATES. 251
tion of having aided or assisted, in the prosecution of such
claim, shall pay a fine of not more than five thousand dol-
lars, or suffer imprisonment not more than one year, or
both.
657. Every officer of the United States, and every ^»*
son acting for or on behalf of the United States, in any
official capacity under or by virtue of the authority of any 18J
department or office of the Government thereof; and every c67;6,^a6' ?' 12:
officer or person acting for or on behalf of either House of X
Congress, or of any committee of either House, or of both ^s^.'ssoi, R.S.
Houses thereof, who asks, accepts, or receives any money,
or any contract, promise, undertaking, obligation, gratuity,
or security for the payment of money, or for the delivery
or conveyance of anything of value, with intent to have
his decision or action on any question, matter, cause, or
proceeding which may at any time be pending, or which
may be by law brought before him in his official capacity,
or in his place of trust or profit, influenced thereby, shall
be punished as prescribed in the preceding section.
658. Every member, officer, or person convicted under of|£erfeiture of
the provisions of the two preceding sections, who holds g/fVVHf'p'
any place of profit or trust, shall forfeit his office or place; 17^-ec 5502 K s>
and shall thereafter be forever disqualified from holding
any office of honor, trust, or profit under the United
States.1
659. Every officer of the Government who knowingly officer c o n -
J & J tractmg beyond
contracts for the erection, repair, or furnishing of any sPfatfonappro"
public building, or for any public improvement, to pay a 23^Ugy32\181658' e>
larger amount than the specific sum appropriated for such i?7^ _^ ^ g
purpose, shall be punished by imprisonment not less than
six months nor more than two years, and shall pay a fine
of two thousand dollars.
660. Any person who shall embezzle, steal, or purloin U53£^g?ent>
any money, property, record, voucher, or valuable thing 18Mpai>47| 1876> v'
whatever of the moneys, goods, chattels, records, or prop-
erty of the United States shall be deemed guilty of felony,
and on conviction thereof before the district or circuit
court of the United States in the district wherein said
offense may have been committed, or into which he shall
carry or have in possession of said property so embezzled,
stolen, or purloined, shall be punished therefor by impris-
onment at hard labor in the penitentiary not exceeding
five years, or by a fine not exceeding five thousand dollars,
1 Section 5500, above referred to, but here omitted, relates to the offense of bribery
when committed by a judge of a court of the United States.
252 MILITARY LAWS OF THE UNITED STATES.
or both, at the discretion of the court before which he
shall have been convicted. Act of March 3, 1875 (18
Stat. Z., 479).
conceafing.prop- 6(>L If any person shall receive, conceal, or aid in con-
d. cealing, or have, or retain in his possession with intent to
convert to his own use or gain, any money, property,
record, voucher, or valuable thing whatever of the mon-
eys, goods, chattels, records, or property of the United
States which has theretofore been embezzled, stolen, or
purloined from the United States by any other person,
knowing the same to have been so embezzled, stolen, or
purloined, such person shall, on conviction before the cir-
cuit or district court of the United States in the district
wherein he may have such property, be punished by a fine
not exceeding five thousand dollars, or imprisonment at
hard labor in the penitentiary not exceeding five years,
one or both, at the discretion of the court before which he
shall have been convicted; and such receiver may be tried
either before or after the conviction of the principal felon;
but if the party has been convicted, then the judgment
against him shall be conclusive evidence in the prosecu-
tion against such receiver that the property of the United
States therein described has been embezzled, stolen, or
purloined. Sec. #, ibid.
CHAJPTER XV.
THE ADJUTANT-GENERAL'S DEPARTMENT.
Par.
667. Adjutants-General to act as Inspect-
ors-General.
668. Returns of troops.
669-679. The recruiting service.
Par.
662. Organization.
663. Rank of adjutant-general.
664-666. Promotions and details.
662. The Adjutant-General's Department shall consist
of one adjutant-general with the rank of major-general 18sli.?
during the active service of the present incumbent of the
office, and with the rank of brigadier-general thereafter;
five assistant adjutants-general with the rank of colonel,
seven assistant adjutants-general with the rank of lieuten-
ant-colonel, and fifteen assistant adjutants-general with
the rank of major: Provided, That all vacancies created
or caused by this section shall, as far as possible, be filled
by promotion according to seniority of officers of the
Adjutant-General's Department. Sec. 13, act of February
'2, 1901 (31 Stat. L., 751).
663. The Adjutant-General of the Army shall have the
rank, pay, and allowances of a major-general in the Army
of the United States, and on his retirement shall have the
retired pay of that rank. Sec. 3, act of June 6, 1900 (31
Stat. Z., 655).
PROMOTIONS AND DETAILS.
664. So long as there remain any officers holding per-
manent appointments in the Adjutant-General's
Department, they shall be promoted according
to seniorit}7 in the several grades, as now provided by
law, and nothing herein contained shall be deemed to apply
to vacancies which can be filled by such promotions, or to
the periods for which the officers so promoted shall hold
their appointments.2 Sec. 26, act of 1901 (31 Stat. L. , 755].
665. When any vacancy, except that of the chief of the
department or corps, shall occur, which can not be filled
by promotion as provided in this section, it shall be filled
6, 1900, s.
* '•**• v- 31- p 755-
Details.
Ibid.
1 For historical note see end of chapter.
2 See also section 13, act of February 2, 1901, paragraph 662, ante.
253
254 MILITARY LAWS OF THE UNITED STATES.
by detail from the line of the Army, and no more perma-
nent appointments shall be made in those departments or
corps. l Ibid.
The same. 666. Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may from time to time prescribe, fbid.
DUTIES.
TO act as assist- 667. Assistant adjutants-general shall, in addition to
ant inspectors- .
general. their own duties, perform those of assistant inspectors-
hip ?' v8?' p' general, when the convenience of the service requires
267; June 18, 1846, fVipm tr» Hn <an 2
c. 29, s. 6, v. 9, p. inem t0 ( ° S0-
18; Mar. 3, 1847, c. 61, s. 2, v. 9, p. 184; July 19, 1848, c. 104, s. 3, v. 9,p. 247; Mar. 2, 1849, c. 83, s. 4, v. 9.
p. 351. Sec. 1130, B. S.
RETURNS OF TROOPS.
turns11 thly re 668. Every officer commanding a regiment, an independ-
7 Art. war. en£ troop, battery, or company, or a garrison, shall, in the
beginning of every month, transmit through the proper
channels to the Department of War an exact return of
the same, specifying the names of the officers then absent
1 For statutory regulations respecting details to the staff see the title ' ' Details to
the Staff" in the chapter entitled "THE STAFF DEPARTMENTS."
3 The Adjutant-General's Department is the bureau of orders and records of the
Army.
Orders and instructions emanating from the War Department or Army Headquar-
ters and all general regulations are communicated to troops and individuals in the
military service through the Adjutant-General. His office is the repository for the
records of the War Department which relate to the personnel of the permanent mili-
tary establishment and militia in the service of the United States, to the military
history of every commissioned officer and soldier thereof, and to the movements and
operation of troops.
The records of all appointments, promotions, resignations, deaths, and other casual-
ties in the Army, the preparation and distribution of commissions, and the compila-
tion and issue of the Army Register and of information concerning examinations for
appointment and promotion, pertain to the Adjutant-General's Office.
The Adjutant-General is charged, under the direction of the Secretary of War, with
the management of the recruiting service, the collection and classification of military
information in regard to our own and foreign countries, the preparation of instruc-
tions to officers detailed to visit encampments of militia, and the digesting, arranging,
and preserving of their reports; also the preparation of the annual returns or the
militia required by law to be submitted to Congress. Requests for military informa-
tion, which require action on the part of any military attache of the United States,
will be made to the Adjutant-General of the Army. Par. 833, A. R,, 1901.
In the Adjutant-General's Office the names of all enlisted soldiers are enrolled,
enlistments and descriptive lists filed, deaths, discharges, desertions, etc., recorded,
the general returns of the Army consolidated, returns of regiments and posts and all
muster rolls, and the inventories of effects of deceased officers and soldiers preserved.
Par. 834, ibid. But, see, as to the custodianship of certain rolls, returns, and records
of the volunteer forces called into service during the recent war with Spain, section
8 of the act of April 22, 1898 (30 Stat. L., 362), paragraph 1238, post.
The act of appropriation of March 15, 1898, contained the following requirement :
"For contingent expenses of the Military Information Division of the Adjutant-
General's Office, and of the military attaches at the United States embassies and
legations abroad, to be expended under the direction of the Secretary of War, three
thousand six hundred and forty dollars. Act of March 15, 1898 (30 Stat. L., 327).
For pay of a clerk attendant on 'the collection and classification of military informa-
tion, one thousand five hundred dollars." Ibid., 320. Similar provision is made in
in the act of March 3, 1899. Ibid., 1064.
MILITARY LAWS OF THE UNITED STATES.
255
from their posts, with the reasons for an I the time of their
absence. And any officer who, through neglect or design,
omits to send such returns shall, on conviction thereof, be
punished as a court-martial may direct.1 Seventh article
of war.
THE RECRUITING SERVICE.
Par.
669. Term of enlistment.
670-671. General qualifications.
672-673. Enlistment of minors.
674. Unlawful enlistments, penalty.
675. Fraudulent enlistment.
676. Oath of enlistment.
Par.
677. Bounty.
678. Enlistments in excess of authorized
strength.
679. Details for recruiting service; in-
creased rank.
enll8t'
669. Hereafter all enlistments in the Army shall be f or
the term of three years,2 and no soldier shall be again
enlisted in the Army whose service during his last preced- £u,|- ^ lj**, *• 2,
ing term of enlistment has not been honest and faithful. Sec- 1119- K- s-
Section 8, act of August 1, 1894 (®$ Stat Z.,
670. Recruits enlisting in the Army must be effective General
and able-bodied men, and between the ages of eighteen
and thirty-five years,3 at the time of their enlistment. This 9 f n-v
limitation as to age shall not apply to soldiers reenlisting. ^ar. |. isis, c.
224; July 5, 1838, c. 162, s. 30, v. 6, p. 260, Feb. 13, 1862, c. 25, s. 2,' v. 12, p. C39:
June 21, 1862, res. 37, v. 12, p. 620; July 17, 1862, c. 200, s. 21, v. 12, p. 597, Feb.
27, 1893, v. 27, p. 486, s. 2; Aug. 1, 1894, v. 28, p. 216, s. 4; Mar. 2, 1899, v. 30, p. 977;
In re McDonald, 1 Lowell, p. 100. Sec. 1116, B. S.
671. In time of peace no person (except an Indian) who Qualifications
. . , TT . for enlistment.
is not a citizen ot the United States, or who has not made Aug. i, ISM, s. 2,
i i j i ^ i • • A X- -j.- , v, 28, p. 216; Mar.
legal declaration ot ms intention to become a citizen or 2, 1899, s. 4, v. so,
the United States, or who can not speak, read, and write
the English language, or who is over thirty-five }Tears of
age,3 shall be enlisted for the first enlistment in the Army.
Sec. 0, act of August 1, 1804 (28 Stat. Z., 216); sec. \
act of March 2, 1899 (30 Stat. L.. 977).
1 Commanders of departments, corps, and posts will make to the Adjutant-Gen-
eral's Office, in Washington, monthly returns of their respective commands on forms
furnished by the Adjutant-General of the Army, and in accordance with the directions
printed thereon. In like manner company commanders will make monthly returns
of their companies to regimental headquarters. Par. 876, A. R., 1901.
For instructions relating to the preparation of monthly returns see paragraphs
876-889, Army Regulations, 1901.
2 This enactment replaces the requirement of section 1119 of the Revised Statutes
by which the term of enlistment was fixed at five years. For regulations governing
enlistments in the regular service see Article LXXI, paragraphs 818 to 856, Army
Regulations of 1895. For rules governing the recruitment of the volunteer forces see
Circular of June 3, 1898, from the Adjutant-General's Office, and General Orders, 122
and 150, A. G. O., of 1899.
3The act of February 27, 1893 (27 Stat. L., 486)., fixed the superior limit of age at
enlistment at thirty years instead of thirty-five, as required by section 1116, Revised
Statutes, and this requirement was repeated in section 2 of the act of August 1, 1894
(28 ibid., 216), which limited the operation of the enactment to a "time of peace,"
leaving the higher limit of age to become operative in time of war. The superior
limit was established at thirty-five years and the inferior limit at eighteen years by
section 4 of the act of March 3, 1899 (ibid., 977).
256 MILITARY LAWS OF THE UNITED STATES.
f 672- No Person under the age of twenty-one years shall
m?Zi?'v*$lp;^* enlisted or mustered into the military t-ervice of the.
nshorner'scase, United States without the written consent of his parents or
1 llee.Vn ^iifs. guardians: Provided, That such minor has such parents or
guardians entitled to his custody and control.
bePeSted!ot l° 6?3. ^TO minor under the age of sixteen years, no insane
MuhT^/Ri* or intoxicated person, no deserter from the military serv-
Do, S. 0, v . 3, p. tH / , •/
s.U5f v/iTp.'S *ce °f the United States, and no person who has been con-
Mar. 3, ^^79, victed of a felony shall be enlisted or mustered into the
JS&Sffi6-^ military service.
Sec.ill8,B.S.
]is^m^nte;tedpS- 674> Every officer who knowingly enlists or musters into
al3yirt.war. *he military service any minor over the age of sixteen
years without the written consent of his parents or guard-
ians, or any minor under the age of sixteen years, or any
insane or intoxicated persons, or any deserter from the
military or naval service of the United States, or any per-
son who has been convicted of any infamous criminal
offense, shall, upon conviction, be dismissed from the
service, or suffer such other punishment as a court-martial
may direct. Third Article of War.
]iftrment!lenten" 675> Fraudulent enlistment and the receipt of any pay
2 JvUl2?2p lyn' *' 01> allowance thereunder, is hereby declared a military
offense and made punishable, by a court-martial, under
the sixty-second Article of War.1 Sec. 2. act of Juf// J7.
1892 (27 Stat. Z., 277).
OATH OF ENLISTMENT.
mOath of enlist- QJQ Thege ruleg and ftrticles shall be rea(j to eyery
2 Art. war. en]isted man at the time of, or within six days after, his
enlistment, and he shall thereupon take an oath or affir-
mation, in the following form: "/, A. B., do xohnndy
swear (or affirm) that I will bear true faith and allegiance
to the United States of America; that / will serve them
honestly and faithfully against all their enemies whomso-
ever; and that I loill obey the orders of the President of
the United States, and the orders of the officers appointed
over me^ according to the rules and Articles of W<i/'." This
oath may be taken before any commissioned officer of the
Army.2 Second Article of War.
1 For a definition of the offense of fraudulent enlistment see Circular 13, H. Q. A.,
of 1892; see also Dig. Opin. J. A. Gen., paragraphs 1412-1423.
2 Enlistment is a contract, but it is one of those contracts which changes the status,
and where that is changed no breach of contract destroys the new status or relieves
from the obligations which its existence imposes. * * By enlistment the citi-
zen becomes a soldier. His relations to the State and the public are changed. He
acquires a new status, with correlative rights and duties, and although he may violate
his contract obligations, his status as a soldier is unchanged. He can not of his own
MILITARY LAWS OF THE UNITED STATES. 257
677. A premium of two dollars shall be paid to anybr?£|?^m for
citizen, noncommissioned officer, or soldier for each ac-re;JUIg yS^p
cepted recruit he may bring to a recruiting rendezvous.1 62seC. 1120. B. s.
678. To fill vacancies occurring, from time to time, in
the several organizations serving without the limits of the %de
United States with trained men, the President is author-29' v-
ized to enlist recruits in numbers equal to four per centum
of the total strength authorized for such organizations.
Section 29, act of February 8, 1901 (31 Stat. L. , 756).
679. The Secretary of War is authorized to detach
from the Army at large such number of enlisted men
may be necessary to perform duty at the various recruit-
ing stations, and while performing such duty one member
of each party shall have the rank, pay, and allowances of
a corporal of the arm of the service to which they respec-
tively belong. Section 31, act of February #, 1901 (31
Stat. Z., 756).
HISTORICAL NOTE. — The office of Adjutant-General, which had existed during the
government under the Articles of Confederation, was created by section 7 of the act
of March 5, 1792 (1 Stat. L., 241), which made provision for an adjutant who was to
do the duty of an inspector: section 3 of the act of May 30, 1796 (ibid., 483), contained
a similar provision for an inspector who was to do the duty of adjutant-general, but
who was to continue in service until March 4, 1797, and no longer. Temporary pro-
vision seems to have been made for the performance of the duties of the department
from March 4, 1797, until May, 1798, when, in anticipation of war with France, an
increase of the military establishment was authorized and provision made in section
6 of the act of May 28, 1798 (ibid., 538), for the appointment of an adjutant-general
with the rank and pay of a brigadier-general. Section 14 of the act of March 3, 1799
(ibid., 749), contained the requirement that the adjutant-general of the Army should
be, ex officio, assistant inspector-general, and that deputy inspectors-general should be,
ex officio, deputy adjutants-general, and should perform the duties of adjutants-general
volition throw off the garments he has once put on, nor can he, the State not object-
ing, renounce his relations and destroy his status on the plea that if he had disclosed
truthfully the facts the other party, the State, would not have entered into the new
relations with him, or permitted him to change his status. U. S. v. Grimley, 137
U. S., 147.
Volunteer recruiting service. — The method of enlistment in the case of volunteers is
regulated by section 5 of the act of April 22, 1898 (30 Stat. L. 361), which confers
authority upon the Secretary of War "to prescribe such rules and regulations, not
inconsistent with the terms of this act, as may in his judgment be necessary for the
purpose of examining, organizing, and receiving into service the men called for."
Under the authority thus conferred regulations were prepared by the Secretary of
War and promulgated to the Army in a circular from the Adjutant-General's Office
under date of June 3, 1898. Section 12 of the act of March 2, 1899 (30 Stat. L., 977) ,
authorized the recruitment of a force of 35,000 volunteers, "without restriction as to
citizenship or educational qualifications." For orders regulating the enlistment and
organization of this force see General Orders, No. 122 and 150, A. G. 0., of 1899.
*This provision has become practically obsolete, as funds for the payment of the
premiums therein authorized are no longer provided for in the annual acts of appro-
priation for the support of the military establishment.
During the period of the war of the rebellion the amount authorized by the statute
was paid, not to the person bringing the recruit, but to the recruit himself as a part
of the bounty due him at enlistment. By Circular No. 24, A. G. O., of 1866, this
practice was discontinued and the premium was required to be paid to any military
person or civilian who brought an accepted recruit to the rendezvous; but these pay-
ments were finally suspended, until further orders, by a circular dated February 11,
1868.
22924—08 17
258 MILITARY LAWS OF THE UNITED STATES.
in the armies to which they might be assigned. These officers were disbanded on
June 15, 1800, in pursuance of a requirement to that effect contained in the act of
May 14, 1800 (2 ibid., 85). Section 3 of the act of March 16, 1802 (ibid., 132), pro-
vided for an adjutant and inspector of the Army, who was to be taken from the field
officers. Section 4 of the act of January 11, 1812 (ibid., 671), created the office of
Adjutant-General, with the rank and pay of a brigadier-general, which continued to
exist until the close of the war, when it was discontinued in the reduction accom-
plished by the act of March 3, 1815 (3 ibid. , 224). The duties of the department were
again performed by officers temporarily detailed for the purpose for a little more than
a year, when, by the act of April 24, 1816 (3 ibid., 297), the temporary establishment
was made permanent and the strength of the department was fixed at one Adju-
tant and Inspector-General (brigadier-general), one assistant adjutant-general (colo-
nel) for each division, and one assistant adjutant-general (major) for each brigade.
At the general reduction of 1821 the department was reduced to a single officer — an
Adjutant-General of the Army — with the rank of a colonel of cavalry. By section 7
of the act of July 5, 1838 (5 ibid., 256), two assistant adjutants-general (brevet majors)
and four brevet captains were added to the department. By section 6 of the act of
June 18, 1846 (9 ibid., 17), four assistant adjutants-general were added for the period
of the existing war; by section 2 of the act of March 3, 1847 (ibid., 184), one lieutenant-
colonel and two brevet captains were authorized under the sain^ restriction as to
tenure of office. By section 3 of the act of July 19, 1848 (ibid., 247), the limitation
contained in the two acts last cited was removed, and the establishment, as it existed
at the close of the war with Mexico, was made permanent; the vacancies were not
to be filled, however, until the further order of Congress; but, by section 4 of the
act of March 2, 1849 (ibid., 351), this restriction was repealed and the President was
authorized to make appointments and promotions in the department as then consti-
tuted by law.
At the outbreak of the war of the rebellion the department was reorganized, its
composition being fixed by the act of August 3, 1861 (12 Stat. L., 287), at 1 brigadier-
general, 1 colonel, 2 lieutenant-colonels, 4 majors, and 12 captains. By section 22 of
the act of July 17, 1862 £ibid., 597), 1 colonel, 2 lieutenant-colonels, and 9 majors
were added to the establishment, with the requirement that vacancies in the grade
of major should thereafter be filled by selections from captains in the Army. By
section 10 of the act of July 28, 1866 (14 ibid., 333), the composition of the depart-
ment was fixed as follows: One brigadier-general, 2 colonels, 4 lieutenant-colonels,
and 13 majors. The grade of captain not being provided for in this enactment was
thenceforward discontinued. This statute contained the requirement that vacancies
in the office of Adjutant-General should thereafter be filled by selection from the offi-
cers of the department. By section 2 of the act of March 3, 1869 (15 ibid., 318) , pro-
motions and appointments in the department were forbidden until the further order of
Congress, but by Joint Resolution, No. 12, of April 10, 1869 (16 ibid., 53) , this statute was
suspended in its operation as to vacancies which had existed on March 3, 1869. By
the act of March 3, 1873 (17 ibid., 578), the appointment of 1 major to the department
was authorized and, by the act of March 3, 1875 (18 ibid., 478) , the restriction upon
appointments and promotions, imposed by the act of March 3, 1869, was removed,
and the composition of the department fixed at 1 brigadier-general, 2 colonels, 4
lieutenant-colonels, and 10 majors. By the act of February 28, 1887 (24 ibid., 434),
the grades of rank of the officers constituting the department were rearranged so as
to consist of 1 brigadier-general, 4 colonels, 6 lieutenant-colonels, and 6 majors, the
vacancies created by the act to be filled by promotion according to seniority. By
the act of August 6, 1894 (28 ibid., 234), the number of majors in the department
was reduced to 4. By the act of May 18, 1898 (30 ibid., 419), the appointment
of 1 colonel and 1 major was authorized, with the proviso that, upon the muster out
of the volunteer forces, no promotions or appointments should be made until tne
number of officers of the above grades had been reduced to that authorized by the
law in force prior to the passage of the act. By section 3 of the act of June 6,' 1900
(31 ibid., 655), the rank of major-general was conferred upon the Adjutant-General
' 'during the service of the present incumbent. ' ' By section 1 3 of the act of February 2,
1901 (31 ibid., 751 ), the permanent strength of the "department was fixed at 1 adjutant-
general with the rank of major-general, until a vacancy shall occur in the office on
the expiration of the service of the present incumbent, by retirement or otherwise,
and thereafter with the rank of brigadier-general, 5 assistant adjutants-general vvit-h
the rank of colonel, 7 assistant adjutants-general with the rank of lieutenant-colonel,
and 15 assistant adjutants-general with the rank of major. A system of details was
also established, by the operation of which the permanent commissioned personnel
of the department will be gradually replaced, as vacancies occu~, by officers detailed
from the line of the Army for duty in the Adjutant-General's Department.
CHAPTER
THE INSPECTOR-GENERAL'S DEPARTMENTS
Par.
680. Composition.
681-683. Promotions and details.
684. Expert accountant.
685. Inspections of public works and dis-
bursements.
686. The same, reports.
687. Restriction on the payment of mile-
Par.
688. Inspection of National Home for
Disabled Volunteer Soldiers.
689. Inspection of the Soldiers' Home.
690. Designation of articles for sales.
691. Administration of oaths.
ORGANIZATION.
680. The Inspector-General's Department shall consist
of one inspector-general with the rank of brigadier-gen-
eral, three inspectors-general with the rank of colonel, Sec.ii8i,B.s.
four inspectors-general with the rank of lieutenant-colonel,
and nine inspectors-general with the rank of major.2 Sec.
14, act of February 2, 1901 (31 Stat. Z., 751), act of March
8,1901. (Ibid., 899.)
PROMOTIONS AND DETAILS.
681. So long as there remain any officers holding perma-
nent appointments in the * * * Inspector-General's 26> v< -P- ?55.
Department, * * * they shall be promoted according
to seniority in'the several grades, as now provided by law,
and nothing herein contained shall be deemed to apply to
vacancies which can be filled by such promotions, or to
the periods for which the officers so promoted shall hold
their appointments.3 Sec. 26, act of February 2, 1901 (31
Stat. L., 755).
682. When any vacancy, except that of the chief of the Details.
department or corps, shall occur, which can not be filled
by promotion as provided in this section, it shall be filled
1 For historical note see end of chapter.
2 The organization above set forth becomes operative upon the occurrence of a
vacancy in the grade of colonel as established by the act of February 2, 1901.
3 See also section 14, act of February 2, 1901, paragraph 680, ante.
259
260 MILITAEY LAWS OF THE UNITED STATES.
by detail from the line of the Army, and no more per-
manent appointments shall be made in those departments
or corps.1 IMd.
The same. 683. Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may from time to time prescribe. Ibid.
countantrt ac ^84. For pay of one expert accountant for the Inspector-
26Fpb773.'1891> v' General's Department, to be appointed in case of vacancy,
by the Secretary of War, two thousand five hundred dol-
lars.2 Act of February % 1891 (26 Stat. Z., 773).
DUTIES.3
685« Jt sha11 be the dutJ of the Secretary of War to
'V cause frequent inquiries to be made as to the necessity,
is, p. 33. economy, and propriety of all disbursements made by
disbursing officers of the Army, and as to their strict con-
1 For statutory regulations respecting details to the staff, see the title Details to the
Staff in the chapter entitled "The Staff Departments." This section replaces the
requirement of the act of June 23, 1874 (18 Stat. L., 244), authorizing the detail of
four officers of the line of the Army to act as assistant inspectors.
2 For statutory provisions respecting the mileage of this officer see the act of Feb-
ruary 27, 1893 (27 Stat. L., 480). Par. 847, post.
3 The duties of inspectors-general are denned in the following paragraphs of the
Army Regulations of 1895 (see also G. O. 80 and 91, A. G. O. of 1898) :
Officers of the Inspector-General's Department will inspect once in each year all
military commands, garrisoned posts, and camps, and once in two years such ungar-
risoned posts and national cemeteries as can be visited without departing materially
from the routes of other prescribed inspections. (Par. 867, A. R., 1895.)
Inspections of the Military Academy will be made only under specific instructions
given in each case by the Secretary of War, and inspections of the service schools, in
so far as they are distinct from posts, under similar instructions given by the Secretary
of War or the Commanding General of the Army. (Par. 869, ibid.)
The military department of civil institutions of learning at which officers of the Army
are detailed will be inspected annually, near the close of the college year, under specific
instructions. The inspecting officer, upon his arrival at the institutions, will apply
to the president or the administrative officer thereof for such aid or facilities as he
may require. His report will be sent to the Inspector-General of the Army, tjien to
the Adjutant-General of the Army for note and return, and a copy furnished the
president of the institution by the War Department. (Par. 870, ibid. )
The sphere of inquiry of the Inspector-General's Department includes every branch
of military affairs, except when specially limited in these regulations or in orders.
Inspectors-general and acting inspectors-general will exercise a comprehensive and
general observation within their respective districts over all that pertains to the effi-
ciency of the Army, the condition and state of supplies of all kinds, of arms and
equipments, of the expenditure of public property and moneys, and the condition of
accounts of all disbursing officers of every branch of the service; of the conduct, dis-
cipline, and efficiency of officers and troops, and report with strict impartiality in
regard to all irregularities that may be discovered. From time to time they will make
such suggestions as may appear to them practicable for the cure of any defect that
may come under their observation. Par. 857, ibid.
Inspectors-general and acting inspectors-general are under the orders of the Secre-
tary of War and the Commanding General of the Army only, and all orders not con-
fidential will be issued from the Adjutant-General's Office and transmitted to them
through^ the Inspector-General of the Army. They will make the general inspections
within the limits of their respective districts, and will each be allowed the necessary
clerks and one messenger, who will be assigned by the Secretary of War. (Par. 858,
ibid. )
See also paragraphs 720, 859-866, 872-875, and 878-889, A. R., 1895.
The sphere of inquiry of the Inspector-General's Department includes every branch
of military affairs except when specially limited in these regulations or in orders.
MILITARY LAWS OF THE UNITED STATES. 261
formity to the law appropriating the money; also to ascer-
tain whether the disbursing officers of the Army comply
with the law in keeping their accounts and making their de-
posits; such inquiries to be made by officers of the Inspec-
tion Department of the Army, or others detailed for that
purpose: Provided, That no officer so detailed shall be in
any way connected with the department or corps making
the disbursement. Act of April 20, 1874 (18 Stat. L. , 3$).
686. That the reports of such inspections shall be made8p^J^J of in'
out and forwarded to Congress with the annual report of
the Secretary of War. Ibid.1
687. Hereafter no portion of the appropriation for mile- mne?g^tion on
age to officers traveling on duty without troops shall be 28A^37'. 1894) v
expended for inspections or investigations, except such as
are especially ordered by the Secretary of War, or such
Inspectors-general and acting inspectors-general will exercise a comprehensive and
general observation within their respective districts over all that pertains to the effi-
ciency of the Army, the condition and state of supplies of all kinds, of arms and
equipments, of the expenditure of public property and moneys, and the condition of
accounts of all disbursing officers of every branch of the service; of the conduct, dis-
cipline, and efficiency of officers and troops, and report with strict impartiality in
regard to all irregularities that may be discovered. From time to time they will
make such suggestions as may appear to them practicable for the cure of any defect
that may come under their observation. Par. 857, ibid.
1 INSPECTIONS OF PUBLIC WORKS AND DISBURSEMENTS.
The inspection contemplated in this provision is that required by the act of April
20, 1874 (18 Stat, L., 33). See also Chapter XLI, entitled THE NATIONAL HOME FOB
DISABLED VOLUNTEER SOLDIERS.
All depots, armories, arsenals, and public works of every kind under charge of
officers of the Army, except works of engineering conducted under the direction of
the Secretary of War and supervision of the Chief of Engineers, will be inspected
annually by officers of the Inspector-General's Department. These inspections will
include military and business administration and methods, but will not extend to the
scientific or technical character of work, for which the officer in charge is responsible,
through the head of his department, to the Secretary of War. Par. 868, A. R., 1895.
The inspection of disbursements and money accounts of disbursing officers required
by act of April 20, 1874, will be made by officers of the Inspector-General's Depart-
ment or others detailed for that purpose, and, as far as practicable, at irregular inter-
vals, but no officer so detailed shall be in any way connected with the corps or staff
department making the disbursement. The frequency of these inspections will be
regulated by the Secretary of War. Par. 871, ibid.
Inspectors-general and acting inspectors-general will inquire as to the necessity,
economy, and propriety of all disbursements, their strict conformity to the law appro-
priating the money, and whether the disbursing officers comply with the law in keep-
ing their accounts and making their deposits. A statement of receipts and expendi-
tures and of the distribution of funds, with a list of outstanding checks, on forms
furnished by the Inspector-General of the Army, will be submitted by the disbursing
officer to the inspector, who should immediately transmit the list of outstanding
checks to the several depositories. Upon return from a depository, balances will be
verified and noted on the inspection report, which will then be forwarded to the
Inspector-General. The list of outstanding checks will be retained by the inspector,
and a copy, with indorsements thereon, sent to the Inspector-General. Par. 876,
ibid.
When an officer ceases to act as a disbursing officer he will submit to the^officer to
whom the inspection of his accounts has been assigned a statement of _ his money
accounts from date of last inspection to and including tiie closing of his accounts,
with a list of outstanding checks. If an inspection be impracticable, the statement
will be forwarded to the Inspector-General of the Army. Par. 877, ibid.
262 MILITARY LAWS OF THE UNITED STATES.
as are made by army and department commanders in visit-
ing their commands, and those made by Inspector-General's
Department in pursuance of law, Army Regulations, or
orders issued by the Secretary of War or the Commanding
General of the Army; and all orders involving the pay-
ment of mileage shall state the special duty enjoined.1
Act of August 6, 1894 (28 Stat. L., 237).
vSSSa 08$ 688' The Secretary of War shall hereafter exercise the
diMar ^ iS v same supervision over all receipts and disbursements on
27, p. ess. account of the Volunteer Soldiers' Homes as he is required
by law to apply to the accounts of disbursing officers of the
Army. Act of March 3, 1893 (27 Stat. Z., 653).
era??feci?m?e?o 689« The Inspector-General of the Army shall, in per-
nmkereportaet<? son? once ln eacn year thoroughly inspect the [Soldiers']
i883,Cv.22,^a5648' Home, its records, accounts, management, discipline, and
sanitary condition, and shall report thereon in writing,
together with such suggestions as he desires to make.2
Sec. 2, act of March 3, 1883 (22 Stat. Z., 564).
emTtPoedl°sriSggI?e 690. The officers of the Subsistence Department shall
artici< ale, procure? an(j keep for sale to officers and enlisted men at
,Cv.2i4?p!yJ6! cost prices, for cash or on credit, such articles as may, from
Sec. ii4*,R.s. . time, be designated by the inspectors-general of
the Army. An account of all sales on credit shall be kept,
and the amounts due for the same shall be reported monthly
to the Paymaster-General. See sections 1299 and 1300,
Jtev. Stat. (paragraphs 659 and 660, post).
administered by 691> ^ny °fficer or clerk of any of the departments law-
oflAprii H?' 1869 frdty detailed to investigate frauds on or attempts to de-
Res. NO. 15^2, v. fraud, the Government, or an}^ irregularity or misconduct
7570Mar8>2' i9oi' °^ anJ °fficer or agent of the United States, and any officer
v's3ec.pillJ'B. s. °^ ^e Army detailed to conduct an investigation, and the
recorder, and, if there be none, the presiding officer of
any military board appointed for such purpose, shall have
authority to administer an oath to any witness attending
to testify or depose in the course of such investigation.
Act of March 2, 1901 (31 Stat. Z., 951).
1 The expense for transportation to a point not located on a railroad incurred by an
officer of the Inspector-General's Department in inspecting unserviceable river and
harbor material, is properly payable from the appropriation for the river and harbor
work. Ill Compt. Dec., 3.
2 The act of January 19, 1891 (26 Stat. L., 722), required an officer of this Depart-
ment, at least once each year, to visit the military prison at Fort Leavenworth,
Kansas, " for the purpose of examining into the books and all the affairs thereof,
and ascertaining whether the laws, rules, and regulations relating thereto are com-
plied with, the officers are competent and faithful, and the convicts properly governed
and employed, and at the same time treated with humanity and kindness. And it
shall be the duty of the inspector, at once, to make full report thereof to the Secre-
tary of War."
MILITARY LAWS OF THE UNITED STATES. 268
HISTORICAL NOTE. — The Inspector-General's Department had existed during the
war of the Revolution, the office of Inspector-General having been held by Baron
Steuben, whose appointment was approved by Congress in a resolution dated May
25, 1778. During the incumbency of Baron Steuben a system of drill regulations
was prepared and introduced, which continued in use until replaced, in part, by the
system prepared by Col. Alexander Smyth in 1810, being finally superseded by the
d'rill regulations prepared by Major-General Scott in 1821. On June 25, 1788, in con-
formity to a resolution of Congress of that date, the Inspector's Department ceased
to exist, and the inspection of the troops was conducted for a time by officers of the
line detailed for the purpose. By section 4 of the act of April 30, 1790 (1 Stat. L.,
who was to do the duty of an Inspector; section 3 of the act of May 30, 1796 (ibid. , 483) ,
made similar provision for an Inspector who was to do the duty of an Adjutant. The
acts of March 3, 1797 (ibid., 507), and May 22, 1798 (ibid., 557), authorized the detail
of an officer of the line to perform the duties of Inspector-General. Section 6 of the
act of May 28, 1798 (ibid., 588) , passed in contemplation of war with France, author-
ized the appointment of an Inspector-General with the rank of major-general, and on
July 18, 1798, Gen. Alexander Hamilton was appointed to the vacancy. The tem-
porary military establishment thus authorized, which was never fully completed, was
disbanded by the acts of February 20, 1800 (2 ibid., 7), and May 14, 1800 (ibid., 85)
aud the duties of the Department were again performed by detail until the office of
Inspector was created by section 4 of the act of March 16, 1802 (ibid., 132) ; by section
3 of the act of April 12, 1808 (ibid., 481), two brigade inspectors were authorized to
be detailed from the line with increased rank; by the act of December 24, 1811
(ibid., 669), the office of Inspector-General (brigadier-general) was created and two
assistants (lieutenant-colonels) were authorized; the duties of the Department were
defined in regulations approved by the Secretary of War on November 4, 1812. By
the act of March 3, 1813 (ibid., 819), the Adjutant and Inspector-General's Depart-
ments were again merged. The act of March 3, 1815 (3 ibid., 224), fixing the peace
establishment, made no express provision for these Departments, their duties being
performed by officers temporarily detailed for the purpose. By section 10 of the act
of April 24, 1816 (ibid., 297), however, the temporary establishment which had
existed since 1815 was made permanent. Provision was also made for an Adjutant
and Inspector-General of the Army, together with. an inspector-general to. each divi-
sion and an assistant to each brigade, which were to be filled by detail of officers
from the line. At the general reduction of 1821 the Inspector-General's Department
was recognized and continued by section 6 of the act of March 2, 1821 (ibid., 615),
its composition being fixed at two inspectors-general with the rank and pay of colonels
of cavalry. By section 4 of the act of August 23, 1842 (51bid., 512), the Department
was reduced to one officer; the disbanded officer wras restored, however, by the act
of June 12, 1846 (9 ibid., 2), and the composition of the Department, as thus estab-
lished, underwent no change until the outbreak of the war of the rebellion.
By section 2 of the act of August 3, 1861 (12 ibid., 287), five majors were added to
the Department; by section 4 of the act of August 6, 1861 (ibid., 318), two colonels
were authorized ; and provision for the inspection service of the armies in the field
was made by section 10 of the act of July 17, 1862 (ibid., 299), which authorized the
rank and pay of lieutenant-colonel of cavalry to be conferred upon the inspectors-
general of Army corps. By section 11 of the act of July 28, 1866 (14 ibid., 334), the
composition of the Department was fixed as follows: Four colonels, three lieutenant-
colonels, and two majors. Section 6 of the act of March 3, 1869 (15 ibid., 318), con-
tained the requirement that there should be no promotions or appointments in the
staff until otherwise directed by law; by the acts of June 8, 1872 (17 ibid., 338), and
June 16, 1874 (18 ibid., 77), promotions were authorized to correct inequalities in the
rank of officers of the Department. By the act of June 23, 1874 (ibid., 244), the
restriction contained in the act of March 3, 1869, was removed and the strength of
the Department fixed at one Inspector-General with the rank of colonel, two
inspectors-general with the rank of lieutenant-colonel, and two inpectors-general
with the rank of major; authority was also conferred for the detail of four officers
from the line of the Army for service as assistant inspectors-general, who were
to receive the mounted pay of their grades, and no appointments were to be
made to the grade of major until the number of officers in the Department had been
reduced to five. By the act of December 12, 1878 (20 ibid., 257), the rank of briga-
dier-general was conferred upon the senior inspector-general. By the act of Febru-
ary 5, 1885 (23 ibid., 297), the composition of the Department was fixed as follows:
One Inspector-General (brigadier-general), two colonels, two lieutenant-colonels, and
264 MILITAEY LAWS OF THE UNITED STATES.
two majors. It was also provided that the Inspector-General should be selected from
the officers of the corps, that promotions should be by seniority in the Department,
and that appointments to the grade of major should be made from the captains in
the line of the Army. By the act of July 7, 1898 (30 ibid., 720), one colonel, one
lieutenant-colonel, arid one major were added to the Department under the conditions
above set forth.
By section 14 of the act of February 2, 1901 (31 ibid. , 751 ) , the permanent strength of
the Department was fixed at one Inspector-General with the rank of brigadier-gen-
eral, four inspectors-general with the rank of colonel, four inspectors-general with
the rank of lieutenant-colonel, and eight inspectors-general with the rank of major.
A system of details was also established, by the operation of which the permanent
commissioned personnel of the Department will be gradually replaced, as vacancies
occur, by officers detailed from the line of the Army for duty in the Inspector-Gen-
eral's Department.
The act of March 3, 1901 (31 Stat. L., 899), modified the organization prescribed in
the act of February 2, 1901, by the insertion of the requirement that, upon the occur-
rence of a vacancy in the grade of colonel, after the present lieutenant-colonels shall
have been promoted or retired, the vacancy shall not be filled and thereafter the
number of officers authorized for the Department shall be as follows: One Inspector-
General with the rank of brigadier-general, three inspectors-general with the rank
of colonel, four inspectors-general with the rank of lieutenant-colonel, and nine
inspectors-general with the rank of major.
CHAJPTER
THE JUDGE-ADVOCATE-GENERAL'S DEPARTMENT.1
Par. i Par.
692. Organization. i 699. Administration of oaths.
693-695. Promotions, appointments, de- | 700. Records of inferior courts.
tails. ' 701. The same, summary courts.
696,697. Duties.
698. Professor of law at the Military
Academy.
ORGANIZATION.
692. The Judge- Advocate-General's Department2 shall g°£p2^n-
consist of one Judge-Advocate-General with the rank of 75f • 15> v- 31> P-
brigadier-general, two judge-advocates with the rank of see. lies, B.S.
colonel, three judge-advocates with the rank of lieutenant-
colonel, six judge-advocates with the rank of major, and for
each geographical department or tactical division of troops
not provided with a judge-advocate from the list of officers
holding permanent commissions in the Judge-Advocate-
General's Department, one acting judge-advocate with the
rank, pay, and allowances of captain mounted.3 Sec. 15 ',
act of February V, 1901 (31 Stat. L., 751).
PROMOTIONS, APPOINTMENTS, DETAILS.
693. Promotions in the Judge- Advocate-General's De-
partment, as provided in the first section of this act, shall
be by seniority up to and including the rank of colonel.
Sec. 2, act of July 5, 1884 (23 Stat. Z., 113).
694. Vacancies created or caused by this act in the grade
of major may be filled by appointment of officers holding 75|- 15> v- 31> p-
commissions as judge -advocates of volunteers since April
21, 1898. Vacancies which may occur thereafter in the
grade of major in the Judge- Advocate-General's Depart-
1 For historical note see end of chapter.
2 Sections 1198 and 1200 of the Revised Statutes and section 2 of the act of June 23,
1874 (18 Stat. L., 244), were replaced by the act of July 5, 1884 (23 Stat. L., 117),
which merged the Bureau of Military Justice and the corps of judge-advocates in the
Judge- Advocate-General's Department, created by that statute.
3 This section repeals and replaces section 1 of the act of July 5, 1884 (23 Stat. L.,
117), in par i materia.
nf • 2> v- 23>
266 MILITARY LAWS OF THE UNITED STATES.
ment shall be filled by the appointment of officers of the
line, or of persons who have satisfactorily served as judge-
advocates of volunteers since April 21, 1898, or of persons
from civil life not over thirty -five years of age. Sec. 15,
act of February 2, 1901 (31 Stat. Z., 751).
i, s. 695- Acting judge-advocates provided for herein shall be
15, v. si, p. 75i. detailed from oflicers of the grades of captain or first lieu-
tenant of the line of the Army, who, while so serving, shall
continue to hold their commissions in the arm of service
to which they permanently belong. Upon completion of
a tour of duty, not exceeding four years, they shall be
returned to the arm in which commissioned, and shall
not be again detailed until they shall have completed two
years duty with the arm of service in which commissioned.
Sec. 15, act of February 2, 1901 (31 Stat. L., 751).
DUTIES.
judgSdviate6 696. The Judge-Advocate-General shall receive, revise
GIec??i99, B. s. an(i cause to be recorded the proceedings of all courts-
martial, courts of inquiry, and military commissions, and
perform such other duties as have been performed hereto-
fore by the Judge- Advocate-General of the Army.1
advu<£?te°sf judge 697- Judge-advocates shall perform their duties under
sec. 1201, B. s. the direction of the Judge- Advocate-General.
1The work done in his office and for which this officer is responsible consists
mainly of the following particulars: Reviewing and making reports upon the pro-
ceedings of trials by court-martial of officers, enlisted men, and cadets, and the
proceedings of courts of inquiry; making reports upon applications for pardon or
mitigation of sentence; preparing and revising charges and specifications prior to
trial, and instructing judge-advocates in regard to the conduct of prosecutions;
drafting of contracts, bonds, etc. ; as also for execution by the Secretary of War
of deeds, leases, licenses (see License), grants of rights of way, approvals of loca-
tion of rights of way, approvals of plans of bridges and other structures, notices to
alter bridges as obstructions to navigation, etc. ; framing of bills, forms of procedure,
etc. ; preparing of opinions upon questions relating to the appointment, promotion,
rank, pay, allowances, etc., of officers, enlisted men, etc., and to their amenability
to military jurisdiction and discipline; upon the civil rights, liabilities, and relations
of military persons and the exercise of the civil jurisdiction over them ; upon the
employment of the Army in execution of the laws; upon the discharge of minors,
deserters, etc., on habeas corpus; upon the administration of military commands,
the care and government of military reservations, and the extent of the United
States and State jurisdictions over such reservations or other lands of the United
States; upon the proper construction of appropriation acts and other statutes; upon
the interpretation and effect of public contracts between the United States and
individuals or corporations; upon the validity and disposition of the varied claims
against the United States presented to the War Department; upon the execution
of public works under appropriations by Congress; upon obstructions to navigation
as caused by bridges, dams, locks, piers, harbor lines, etc., upon the riparian rights
of the United States and of States and individuals on navigable waters, etc. ; and the
furnishing to other departments of the Government of statements and information
apposite to claims therein pending, and to individuals of copies of the records of
their trials under the one hundred and fourteenth article of war. The matter of
the submitting to the Judge- Advocate-General of applications for opinions is regu-
lated by paragraph 853, Army Regulations of 1901.
The Judge- Advocate-General's Department is the Bureau of Military Justice. The
MILITARY LAWS OF THE UNITED STATES. 267
698. The Secretary of War may assign one of thela^rofe|^e °6|
judge-advocates of the Army to be professor of law.1 1874' v- ^'P-60-
Act of June 6, 187 '4 (18 Stat. Z., 60).
699. Judge-advocates of departments and of courts- ca{esd?fe"depa?t-
martial and the trial officers of summary courts are hereby
authorized to administer oaths for the purposes of military ™ay
justice and for other purposes of military administration, pusrPcosf -July 27
Sec. 4, act of July 27, 1892 (27 Stat. Z., 278). 1892- v- '27' P- 27*:
700. Hereafter the records of regimental, garrison, and procleSngsn of
field officers [and] courts-martial shall, after ^having been^m^mmor
acted upon, be retained and filed in the judge-advocate's 19Mpar^ 1877- v-
office at the headquarters of the department commander
in whose department the courts were held for two years,
at the end of which time they m&y be destroyed. Act of
March 3, 1877 (19 Stat. Z., 310).
701. Post and other commanders shall, in time of peace, P68?™?^
*• June is, isyo, s.
on the last day of each month, make a report to the de- 4- v- so, P. 483.
partment headquarters of the number of cases determined
by the summary court during the month, setting forth the
offenses committed and the penalties awarded, which re-
port shall be filed in the office of the judge-advocate of the
department, and may be destroyed when no longer of use.
Sec. 4, act of June 18, 1898 (30 Stat. Z., 483).
Judge-Advocate-General is the custodian of the records of all general courts-martial,
courts of inquiry, and military commissions, and of all papers relating to the title
of lands under the control of the War Department, except the Washington Aque-
duct and the public buildings and grounds in the District of Columbia. The officers
of this department render opinions upon legal questions when called upon by proper
authority. Par. 991, A. R., 1901.
The original proceedings of all general courts-martial, courts of inquiry, and military
commissions, with the decisions and orders of the reviewing authorities made thereon,
and the proceedings of all general courts-martial, courts of inquiry, and military com-
missions which require the confirmation of the President, but which have not been
appointed by him, will be forwarded direct to the Judge-Advocate-General. One
copy of the order promulgating the action of the court and a copy of every subsequent
order affecting the case will be forwarded to the Judge-Advocate-General, with the
record of each case. When more than one case is embraced in a single order, a
sufficient number of copies will be forwarded to enable one to be filed with each
record. The proceedings of all courts and military commissions appointed by the
President will be sent direct to the Secretary of War. Par. 993, A. R., 1901.
Applications of officers, enlisted men, and military prisoners for copies of proceed-
ings of general courts-martial, to be furnished them under the one hundred and
fourteenth article of war, will, when received by post or other commanders, be
forwarded direct to the Judge- Advocate-General. Par. 995, A. R., 1910.
Communications relating to proceedings of military courts on file in the Judge-
Ad vocate-GeneraPs Department will be addressed and forwarded direct by department
commanders to the Judge-Advocate-General. In routine matters the Judge- Advocate-
General and judge-advocates may correspond with each other direct. Par. 996, A. R.,
1901.
The reports which the Judge- Advocate-General may render upon cases received by
him, and which require the action of the President, will be addressed to the Secretary
of War and will be forwarded, through the Commanding General of the Army, for
such remarks and recommendations as he may see fit to make. Par. 997, A. R., 1901.
1 But, see the act of June 1, 1880 (21 Stat. L., 153) , which authorizes any officer of
the Army to be so detailed. The act of June 27, 1881, contained a similar requirement.
268 MILITAEY LAWS OF THE UNITED STATES.
HISTORICAL NOTE. — The office of Judge-Advocate of the Army was created during
the war of the Kevolution, having been established by resolution of Congress of
July 25, 1775 (Journals of Cong.), soon after the enactment of the Articles of War
on June 29 of the same year. In the reenactrnent of the Articles, in 1776, this officer
was styled the Judge- Advocate-General of the Army and was empowered to prose-
cute in the name of the United States or to conduct such prosecutions by deputy.
The office of Judge- Advocate ceased to exist at the disbandment of the Revolutionary
armies, but was revived by section 2 of the act of March, 3, 1797 (1 Stat. L., 507),
which made provision for a Judge- Advocate, to be taken from the commissioned offi-
cers of the line, who was to receive the same pay and allowances as the brigade
major (adjutant) and inspector therein authorized. This office, with other offices in
the general staff, was discontinued by the act of March 16, 1802 (2 ibid., 132). Sec-
tion 19 of the actof 1812 (ibid., 674), passed in contemplation of war with England,
made provision for one judge-advocate, with the rank of major, to each division, and
this nifmber was increased to three by section 2 of the act of April 24, 1816 (3 ibid.,
397). At the reduction of 1818 these officers were disbanded (act of April 14, 1818,
3 ibid., 426), and the office of Judge- Advocate of the Army was discontinued by the
act of March 2, 1821 (ibid., 615) .
By section 4 of the actof March 3, 1849 (9 ibid., 351), the office of Judge- Advocate
of the Army was reestablished, with the rank and pay of major of cavalry. By section
5 of the act of July 17, 1862 (12 ibid., 598), the office of Judge- Advocate-General was
created, with the rank and pay of brigadier-general; by this enactment the duties of
the office were defined. By section 5 of the same statute provision was made for a
corps of judge-advocates, one of whom was to be assigned to duty at the headquarters
of each army in the field. By section 5 of the act of June 20, 1864 (13 ibid., 145), the
Bureau of Military Justice was established, to which the Judge- Advocate-General
was transferred, and an Assistant Judge- Advocate-General, with the rank of colonel of
cavalry, was authorized. By section 12 of the act of July 28, 1866 (14 ibid., 334), the
composition of the department was fixed at one Judge- Advocate-General (brigadier-
general), one Assistant Judge- Advocate-General (colonel), and ten judge-advocates
were added to the military establishment, who were to be selected by the Secretary
of War from the corps of judge-advocates authorized by the act of July 17, 1862. By
this statute the office of Solicitor of the War Department was discontinued, the duties
of the office being merged in the Bureau of Military Justice. By section 3 of the act
of March 3, 1869 (15 Stat. L., 318), all appointments and promotions in the several
departments of the staff were prohibited until otherwise directed by law; but this
restriction was removed, as to the Bureau of Military Justice, by the act of April 10,
1869 (16 ibid., 44), which fixed the number of judge-advocates at eight. By sec-
tion 2 of the act of June 23, 1874 (18 ibid., 244), the office of Assistant Judge- Advocate-
General was discontinued, and it was provided that there should be no appointments
to the grade of major until the number of officers of that grade had been reduced to
four. By the act of July 5, 1884 (23 ibid., 113), the Bureau of Military Justice and
the corps of judge-advocates were consolidated and merged in the Judge- Advocate-
General's Department, the composition of which was fixed as follows: One Judge-
Advocate-General (brigadier-general), one Asssistant Judge- Advocate-General (colo-
nel), three deputy judge-advocates-general (lieutenant-colonels), and three judge-
advocates (majors). Promotion to the grade of colonel was to be by seniority, and
provision was made for the detail of officers of the line as judge-advocates of military
departments, who were to have, while so serving, the rank and pay of captains
mounted.
By section 15 of the act of February 2, 1901 (31 ibid., 751) , the permanent strength of
the Department was fixed at one Judge-Advocate-General with the rank of brigadier-
general, two judge-advocates with the rank of colonel, three judge-advocates with
the rank of lieutenant-colonel, and six judge-advocates with the rank of major. The
system of details of officers of the grade of captain or first lieutenant to serve as act-
ing judge-advocates, and, while so serving, to have the rank, pay, and allowances of
captains mounted, as established by the act of July 5, 1884 (23 Stat. L., 113), was
recognized and continued.
CHAPTER XVIII.
THE QUARTERMASTER'S DEPARTMENT.1
Par.
702. Organization.
703-705. Promotions, transfers, details.
706. Military storekeeper.
707. Post quartermaster-sergeants.
708-711. Duties.
712-719. The procurement of supplies.
Par.
728-732. Public animals, veterinarians.
733-739. Barracks and quarters.
740, 741. Fuel and forage.
742-747. Extra-duty pay.
748. Civilian employees.
749-757. Clothing.
720-727. Transportation.
ORGANIZATION.
702. The Quartermaster's Department shall consist of
one Quartermaster-General with the rank of brigadier-
general, six assistant quartermasters-general with the rank
of colonel, nine deputy quartermasters-general with the
rank of lieutenant-colonel, twenty quartermasters with
the rank of major, sixty quartermasters with the rank of
captain, mounted, * * * and one hundred and fifty
quartermaster-sergeants.2 Sec. 16, act of February #,
1901 (31 Stat. L., 751).
PROMOTIONS, TRANSFERS, AND DETAILS.
703. So long as there remain any officers holding per-
manent appointments in the * * * Quartermaster's 26> 31> p> 765-
Department * * * including those appointed to origi-
nal vacancies in the grades of captain and first lieutenant
under provisions of sections sixteen, seventeen, twenty-
one, and twenty- four of this act, they shall be promoted
1 For historical note see end of chapter.
2 Section 16 of the act of February 2, 1901 (31 Stat. L., 752), contained the
requirement that " the President is authorized to continue in the service, during the
present emergency, for duty in the Philippine Islands and on transports, twenty-four
captains and assistant quartermasters of volunteers." The same enactment provided
that "all vacancies in the grade of colonel, lieutenant-colonel, and major created or
caused by this section shall be filled by promotion according to seniority as now
prescribed by law." It also provided " that to fill original vacancies in the grade of
captain created by this act in the Quartermaster's Department the President is
authorized to appoint officers of volunteers commissioned in the Quartermaster's
Department since April 21, 1898." See also a clause extending the scope of selection
in such appointments in paragraph 578, ante.
269
270 MILITAEY LAWS OF THE UNITED STATES.
according to seniority in the several grades, as now pro-
vided by law, and nothing herein contained shall be
deemed to apply to vacancies which can be filled by such
promotions or to the periods for which officers so pro-
moted shall hold their appointments. Sec. 26, act of,
February 2, 1901 (31 Stat. L., 755).
"^' When any vacancy, except that of the chief of the
department or, corps, shall occur, which can not be tilled
by promotion as provided in this section, it shall be filled
by detail from the line of the Army, and no more perma-
nent appointments shall be made in those departments or
corps. Ibid.
^^' Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may from time to time prescribe.1 Ibid.
°di8c<m- 706< When a vacancy shall occur through death, retire-
tmued. ment, or other separation from active service in the office
of storekeeper in the Quartermaster's Department and
Ordnance Department, respectively, now provided for by
law, said offices shall cease to exist.2 Acts of March 2,
1899 (30 Stat. Z., ,977), and February 2, 1901 (31 Stat.
Z., 748).
POST QUARTERMASTER-SERGEANTS .
^^ ' That ^ne Secretary of War is authorized to appoint,
geants. On the recommendation of the Quartermaster-General, as
July 6, 1884, v.
i898P'v1(?6 Jul728' many POS^ quartermaster-sergeants, not to exceed one
Feb. 2, 1961, v. hundred and fifty,3 as he may deem necessary for the inter-
ests of the service, said sergeants to be selected by exam-
ination from the most competent enlisted men of the Army
who have served at least four years, and whose character
and education shall fit them to take charge of public prop-
erty and to act as clerks and assistants to post and other
quartermasters. Said post quartermaster-sergeants shall,
so far as practicable, perform the duties of storekeepers
and clerks, in lieu of citizen employees. The post quarter-
master-sergeants shall be subject to the Rules and Articles
of War and shall receive for their services the same pay and
1 For statutory regulations respecting details to the staff, see the title Details to tJie
Staff, in the chapter entitled THE STAFF DEPARTMENTS.
2 The above statute replaces a similar restriction which was contained in section 2
of the act of March 3, 1875 (18 Stat. L., 339); the act of February 2, 1901, contained
the same restriction. The office of storekeeper in the Quartermaster's Department,
by the retirement of the last incumbent, hae ceased to exist as a grade of rank on
the active list.
3 Twenty-five post quartermaster-sergeants added to the existing establishment by
the act of July 8, 1898 (30 Stat. L., 728); forty added by section 16, act of February 2,
1901 (31 ibid., 751).
MILITARY LAWS OF THE UNITED STATES. 27 1
allowances as ordnance-sergeants. l Acts of July 5, 188 %
(23 Stat. Z., 109), July 8, 1898(30 StatJ L., 728), and
February 0, 1901 (31 ibid., 751).
DUTIES.
708. It shall be the duty of the officers of the Quarter- gjte* 1812 c
master's Department, under the direction of the "Secretary ege88^.5'^2'^*
of War, to purchase and distribute to the Army all military l1 £
stores and supplies, requisite for its use, which other corps ^•1^7> 8* > v
are not directed by law to provide; to furnish means of »ec. ii88,B.s.
transportation for the Army, its military stores and sup-
plies, and to provide for and pay all incidental expenses
of the military service which other corps are not directed
to provide for and pay.
709. The Secretary of War shall from time to time define Kind and
and prescribe the kinds as well as the amount of supplies pSesU to be p£
to be purchased by the Subsistence and Quartermaster tary of war.
Departments of the Army, and the duties and powers 48, sa5,'v.'2,p, si?!
thereof respecting such purchases; and shall prescribe
general regulations for the transportation of the articles
of suppl \T from the places of purchase to the several armies,
garrisons, posts, and recruiting places, for the safe-keeping
of such articles, and for the distribution of an adequate
and timely supply of the same to the regimental quarter-
masters, and to such other officers as may by virtue of such
regulations, be intrusted with the same; and shall fix and
make reasonable allowances for the store rent and storage
necessary for the safe-keeping of all military stores and
supplies.
710. The officers of the Quartermaster's Department supplies to
r 11 ,1 • .,- <. .1 T . /« naval and ma-
snall, upon the requisition ot the naval or marine omcerrine detacb-
commanding any detachment of seamen or marines under Dec. I6,isi4,c.
orders to act on .shore, in cooperation with land troops, and laf8*
during the time such detachment is so acting or proceeding
to act, furnish the officers and seamen with camp equipage,
together with transportation for said officers, seamen, and
marines, their baggage, provisions, and cannon, and shall
furnish the naval officer commanding any such detach-
ment, and his necessary aids, with horses, accouterments,
and forage.
711. Assistant quartermasters shall do dutv as assistant subsistence
,, , . A duty of assistant
commissaries of subsistence when so ordered by the Secre- quartermasters.
,, A,r J Sec. 1134, B.S.
tary ot War.
*For corps of army service men, see chapter entitled THE MILITARY ACADEMY.
272
MILITARY LAWS OF THE UNITED STATES.
THE PROCUREMENT OF SUPPLIES.
Par.
712. Method of procurement.
713. Purchases.
714. Bakeries, schools, messes.
715. Post gardens, exchanges.
716. Printing, restriction.
si, P. 905
Par.
717. Purchase of clothing, transportation,
etc.
718. Purchases from Indians.
719. Officers not to engage in trade.
712> The Quartermaster's Department of the Army, in
Sec.37i6,iR.s. obtaining supplies for the military service, shall state in
• all advertisements for bids for contracts that a preference
. shall be given to articles of domestic production and manu-
facure, conditions of price and quality being equal, and
that such preference shall be given to articles of American
production and manufacture produced on the Pacific Coast,
to the extent of the consumption required by the public
service there. In advertising for army supplies the Quar-
termaster's Department shall require all articles which are
to be used in the States and Territories of the Pacific
Coast to be delivered and inspected at points designated in
those States and Territories; and the advertisements for
such supplies shall be published in newspapers of the cities
of San Francisco, in California, and Portland, in Oregon.
7^3 Hereafter, except in cases of emergency or where
^ js impracticable to secure competition, the purchase of
all supplies for the use of the various departments and
posts of the Army and of the branches of the Army serv-
ice, shall only be made after advertisement, and shall be
purchased where the same can be purchased the cheapest,
quality and cost of transportation and the interests of the
Government considered; but every open-market emer-
gency purchase made in the manner common among busi-
ness men which exceeds in amount two hundred dollars
shall be reported for approval to the Secretary of War,
under such regulations as he may prescribe.2 Act of
March 3, 1901 (31 Stat. Z., 905).
1 For general provisions on this subject see the chapter entitled CONTRACTS AND
PURCHASES; see also for expenditures upon buildings at military posts the chapter
entitled THE PUBLIC LANDS, MILITARY RESERVATIONS, AND MILITARY POSTS. See
also in respect to the construction of buildings at military posts, paragraphs 734 and
737, post.
2 The acts of March 16, 1896 (29 Stat. L., 65), and March 2, 1897 (ibid. 613), con-
tained a similar requirement. These clauses were suspended during the period of
the existing war by the act of June 7, 1898 ( 30 Stat. L. , 433 ) . By the act of March 3,
1899 (30 Stat. L., 1350), the act of June 7, 1898, was continued in operation ''for
such further time as in the discretion of the Secretary of War may be found neces-
sary, or until otherwise provided by Congress, not longer, however, than March 1,
1900. By the act of February 24, 1900 (31 Stat. L., 32), the suspension was still further
extended under the same conditions until June 30, 1901.
The requirement of section 229 of the Revised Statutes that the Secretary of War
shall lay before Congress at the commencement of each regular session a statement
MILITARY LAWS OF THE UNITED STATES. 273
714. For the current year and thereafter there may 1:
expended from the appropriation for regular supplies the ™£ ools- messes.
amounts required for the necessary equipments of thevJ2^ }|^
bakehouse to carry on post bakeries; for the necessary J^1892> v- 27)
furniture, text-books, paper, and equipments of the post
schools; for the tableware and mess furniture for kitchens
and mess halls; * * each and all for the use of the
enlisted men of the Army. Acts of June 13, 1890 (26 Stat.
Z., 152), July 16, 1892 (27 Stat. Z., 178).
715. Hereafter no money appropriated for the support
of the Army shall be expended for post gardens or v ^^ $g 1892>
exchanges; but this proviso shall not be construed to
prohibit the use, by post exchanges, of public buildings
or public transportation when, in the opinion of the Quar-
termaster-General, not required for other purposes. Act
of July 16, 1892 (27 Stat. Z., 178).
716. No part of the appropriations for the Quarter- fj^if' i89i
master's Department shall be expended on printing unless v- 28« P- 65^-
the same shall be done by contract, after due notice and
competition, except in such cases as the emergency will
not admit of the giving notice for competition; and in
cases where it is impracticable to have the necessary
printing done by contract the same may be done, with the
approval of the Secretary of War, by the hire of the
necessary labor for the purpose.1 Act of March 2, 1901
(31 Stat. Z., 905).
717. No contract or purchase on behalf of the United Purchases of
clothing.
States shall be made unless the same is authorized b^y law sec.3782,B.s.
or is under an appropriation adequate to its fulfillment,
except in the War and Navy Departments, for clothing,
subsistence, forage, fuel, quarters, or transportation,
which, however, shall not exceed the necessities of the
current year.
718. That the Secretary of War be, and he is hereby, InSTesfr°m
authorized and directed, when making purchases for the g ^; 26%.172i!
of all contracts and purchases made by him or under his direction during the year
preceding; and so much of the act of July 5, 1884, as requires the Quartermaster-
General and the Commissary-General of Subsistence to report all purchases made by
their departments with the cost price and place of delivery to the Secretary of War
for transmission to Congress annually, were repealed by the act of March 2, 1895
(28 Stat. L., 787).
1This provision replaces a requirement which had been embodied in the several
acts of appropriation for the support of the Army since that of June 30, 1886 (24 Stat.
L., 96). This enactment was suspended by the acts of June 7, 1898 (30 Stat. L., 433),
and March 3, 1899 (ibid., 1350), subject to the discretion of the Secretary of War and
the further order of Congress, until March 1, 1899. By the act of February 24, 1900
(31 Stat. L., 32), the suspension was extended, under the conditions above stated, to
June 30, 1901.
22924—08 18
274
MILITARY LAWS OF THE UNITED STATES.
military posts or service on or near Indian reservations,
to purchase in open market, from the Indians as far as
practicable^ at fair and reasonable rates, not to exceed the
market prices in the localities, any cattle, grain, hay, fuel,
or other produce or merchandise they may have for sale
or which may be required for the military service. Sec. h
act of January 19, 1891 (26 Stat. L., 721).
tradecers not to ^^ ^° °^cer belonging to the Quartermaster's Depart-
v 2Hp T?2 1812> men^ or doing the duty of a quartermaster or assistant
Sec. ii88,B.s. quartermaster, shall be concerned, directly or indirectly,
in the purchase or safe of any article intended for or
appertaining to said department ^ of service, except on
account of the United States; nor shall any such officer
take or apply to his own use any gain or emolument for
negotiating or transacting any business connected with
the duties of his office, other than that which may be
allowed by law.
TRANSPORTATION.
Par.
720. Transportation of troops.
721. The same, officers traveling without
troops; transportation in kind.
722. The same, land-grant roads.
723. Deduction from mileage accounts.
724. The same, tables of distances.
and
Par.
725. Transportation by land-grant
bond-aided roads.
726. Procurement of means of transpor-
tation.
727. Transportation of property for other
departments of Government.
TRANSPORTATION OF TROOPS.
oarSSs°etction
0. The transportation of troops, munitions of war,
. equipments, military property, and stores throughout the
c United States shall be under the immediate control and
>.
supervision of the Secretary of War and such agents as he
may appoint.1
xThe transportation of organized bodies, or detachments of troops under orders
from competent authority directing travel to be performed, is regulated by the require-
ments of this section, as modified from time to time by the provisions of the annual
acts of appropriation for the support of the Army. The allowance of sleeping-car
accommodation to officers traveling with troops is regulated by the following require-
ments of General Orders No. 3, A. G. O., of 1899:
The following persons are entitled, at public expense, to a double berth in a sleep-
ing car, or to the customary stateroom accommodations on steamers where extra
charge is made for the same: Officers of the Army traveling on duty with troops;
army nurses, civilian clerks and agents in the military service, when traveling under
orders on public business; sergeant-majors, ordnance, commissary (post or regi-
mental), quarterm aster (post or regimental), and electrician sergeants, hospital stew-
ards, chief musicians, chief trumpeters, principal musicians, and sergeants of the
Signal Corps, when traveling under orders on public business without troops; also
invalid soldiers, when so traveling on the certificate of a medical officer showing the
necessity therefor.
When the number of officers traveling with troops is too small to justify the hire
by the Quartermaster's Department of a standard sleeping car for their accommoda-
tion, they shall be furnished with such part of a tourist sleeping car, or other suitable
sleeping car, properly curtained off for their accommodation, as the Quartermaster's
Department may provide for their use during the journey.
For statutes respecting the allowance and payment of mileage to officers traveling
MILITARY LAWS OF THE UNITED STATES. 275
TRANSPORTATION TO OFFICERS TRAVELING WITHOUT TROOPS.
721. Officers who so desire may, upon application to the inTkf^Jportation
Quartermaster's Department, be furnished with transpor- 31^a^i' 1901> v
tation requests, exclusive of sleeping and parlor car
accommodations, for the entire journey under their orders;
without troops see the title Travel Allotvances in the chapter entitled THE PAY DEPART-
MENT. For enactments respecting the furnishing of actual transportation (exclusive
of sleeping and parlor car accommodations) see the act of February 26, 1900 (31 Stat.
L., 210), paragraphs 721 to 724, post.
REIMBURSEMENT OF CIVILIANS FOR TRAVELING EXPENSES.
The transportation of civilian employees and their reimbursement for traveling
expenses are controlled by the following paragraphs of the Army Regulations of 1895:
TRAVELING EXPENSES.-
For authorized journeys of civilian employees of any branch of the military serv-
ice transportation requests will be obtained when practicable, but will be obtained in
every case for travel over bond-aided railroads. Par. 813, A. R., 1901.
Reimbursement of actual expenses when traveling under competent orders will be
allowed under the following heads, to civilians in the employ of any branch of the
military service, excepting the expert accountant of the Inspector-General's Depart-
ment, paymasters' clerks, and those mentioned in the next succeeding paragraph,
viz:
1. Cost of transportation (excluding parlor-car fare) over the shortest usually trav-
eled route, when it was impracticable to furnish transportation in kind on transporta-
tion requests.
2. Cost of transfers to and from railroad stations, not exceeding 50 cents for each
transfer.
3. Cost of one double berth in a sleeping car, or customary state-room accommo-
dation on boats and steamers when extra charge is made therefor.
4. Cost of meals, not exceeding $3 per day, while en route, when meals are not
included in the transportation fare paid; and not exceeding $3 per day for meals and
lodgings during necessary delay en route.
5. Cost of meals and lodgings, not exceeding $3 per day, while on duty at places
designated in the orders for the performance of temporary duty. Par. 814, ibid.
Veterinary surgeons of cavalry regiments traveling under proper orders, in accord-
ance with paragraph 185, are not entitled to reimbursement under the fifth heading
above given. Par. 730, A. R. 1895.
Laborers, teamsters, and employees of similar character, traveling under compe-
tent orders, will be entitled to such actual and necessary expenses of travel and sub-
sistence as may be authorized by the chief of bureau which pays the accounts.
Those in receipt of a ration under paragraph 1252 will not be allowed commutation
therefor. If it be impracticable for them to carry rations in kind, rations will not
be drawn for the period during which they are traveling. Par. 815, A. R. 1901.
None but the authorized items of traveling expenses of civilians will be allowed.
They will in all cases be set forth in detail in each voucher for reimbursement sup-
ported by oath and, when practicable, by receipts. Par. 816, ibid.
Paymasters' clerks and the expert accountant of the Inspector-General's Depart-
ment, when traveling on duty, will, when transportation in kind can not be furnished
by the Quartermaster's Department, be reimbursed for cost of transportation paid
by them, exclusive of parlor or sleeping car fares or transfers, and will receive in
addition thereto, for all travel whether or not on transportation requests, 4 cents
per mile for each mile necessarily traveled by them in the performance of duty —
distance to be computed over the shortest usually traveled route. Par. 818, ibid.
Actual traveling expenses, as contemplated in the preceding paragraphs, are paid
by the following departments, viz:
Pay Department. — To paymasters' clerks, the expert accountant of the Inspector-
General's Department, civilians summoned as witnesses before, and authorized
reporters of, military courts.
_ Ordnance Department. — To employees at arsenals and armories (cost of transporta-
tion included) from appropriations for the service of the Ordnance Department.
Engineer ^Department. — To employees on public works and fortifications (cost of
transportation included) from appropriations made specifically for the work.
Quartermaster's Department. — To employees of the Quartermaster' sand Subsistence
276
MILITARY LAWS OF THE UNITED STATES.
and the transportation so furnished shall be a charge
against the officers' mileage account, to be deducted at the
rate of three cents per mile by the paymaster paying the
account, the amount so deducted to be turned over to the
authorized officer of the Quartermaster's Department for
the credit of the appropriation for transportation of the
Departments, and other employees of the Army not above provided for. Par. 819,
ibid. This department also furnishes transportation to maimed soldiers, etc., to
enable them to procure artificial limbs (see paragraphs 948 and 949, post), and to
soldiers who have been admitted to the Soldiers' Home.
When officers of the staff departments change station the transfer of clerks or other
employees to the new stations at the expense of the United States is prohibited, except
in cases of urgent necessity, for which the sanction of the Secretary of War will first be
obtained. The Pay Department is excepted from this regulation. Par. 820, ibid.
The appropriation for the transportation of the Army is not applicable to the per-
manent repair of a public highway under the jurisdiction of a State. V Compt.
Dec., 673.
TRANSPORTATION OP BAGGAGE.
In changing station an officer's authorized allowance of baggage (a) will be turned
over to a quartermaster for transportation as freight by ordinary freight lines, unless
otherwise ordered by the department commander or higher authority. No reim-
bursement will be made to an officer who under such circumstances sends packages
by express or ships and pays for the transportation of his baggage. Par. 1118, A. R.,
1895.
The baggage to be transported at public expense, including mess chests and personal
baggage, upon change of station, will not exceed the following weights:
Rank.
•
In the
field.
Changing
station.
Major-general
Pounds.
1,000
rounds.
3 500
Brigad ler-general
700
2 800
Field officer
500
2,400
Captain ...
200
2 000
First lieutenant
150
1 700
Second lieutenant and veterinarian . ....
150
1,500
Acting assistant surgeon
150
1 200
Post and regimental noncommissioned staff officer, hospital steward, chief
musician, sergeant of the Signal Corps, squadron and battalion sergeant-
majors each
500
These allowances are in excess of the weights transported free of charge under the
regular fares by public carriers. They may be reduced pro rata by the commanding
officer, if necessary, and may, in special cases, be increased by the War Department
on transports by water. Shipments of officers' allowance of baggage will in all cases
be made at carrier's risk, including those over roads where tariffs provide for extra
charge therefor. Par. 1242, A. K. 1901.
The Quartermaster's Department will transport the authorized change of station
allowance of baggage and professional books and papers for officers or enlisted men
upon retirement, or who die in the service, from their last duty stations to such placet:
within the limits of the United States as may be the homes of their families, or as
may be designated by their legal representatives or executors. Par. 1243, ibid.
Transportation of change of station allowance of baggage is authorized for such
contract surgeons as may be employed, when they join for duty under the first order,
and also on return to their homes on the termination of their contracts, if provided
for in the contracts. Graduates of the Military Academy and officers promoted from
the ranks will be furnished with transportation for field allowance of baggage on their
first assignment to duty as commissioned officers. With these exceptions, transpor-
tation of baggage at public expense is not authorized for officers joining for duty on
first appointment to military service, nor upon reinstatement or reappointment, nor
to effect transfers from one company or regiment to another at the request of parties
transferred. Officers ordered on temporary duty and officers going abroad as military
aThe term " baggage," in the military sense, and as used in statutes relating to the Army, embraces
almost any article of personal property which does not exceed in weight the limit prescribed by Army
Regulations or general orders. 3 Dig. 2d Compt. Dec., 55.
MILITAEY LAWS OF THE UNITED STATES. 277
Army and its supplies.1 Act of March 2, 1901 (31 Stat.
L.,901).
722. When the established route of travel shall, in whole ro^nd'grant
or in part, be over the line of any railroad company which, Ibid-
by law or agreement, is entitled to receive only fifty per
centum of the compensation earned by such company for
transportation services rendered, the United States, officers
traveling as herein provided for shall, for the travel over
such roads, be furnished with transportation requests,
exclusive of sleeping and parlor car accommodations, by
the Quartermaster's Department.1 Ibid.
attaches (a) are not entitled to such transportation. An officer detailed as attache",
however, is entitled to have his full allowance transported from the post he leaves
to his home, or to the nearest convenient place of storage, and upon resuming duty
in this country from such place of storage to his post of duty. While on journeys
as an attache the cost of transporting his personal baggage can not be paid by the
Quartermaster's Department. (6) Par. 1121, A. R., 1895.
The Quartermaster's Department will furnish transportation for the prescribed
regimental and company desks, for the books, papers, and instruments of staff officers
necessary to the performance of their duties, and for the medical chests of medical
officers; also for the professional books of officers changing station, officers ordered
home for retirement, graduates of the Military Academy, and officers joining on first
appointment, which they certify belong to them and pertain to their official duties;
also the professional books of hospital stewards changing station, not exceeding two
hundred pounds in weight. Invoices of packages turned over to the shipping officer
will be accompanied by the certificate of the officer as to character of books, and a
certified copy will be attached to the bill of lading issued at the initial point of ship-
ment. The certificate as to the character of the books of a hospital steward will be
given by the medical officer under whom he last served. Par. 1245, A. R., 1901.
The Quartermaster's Department will transport, for officers changing station, the
number of horses for which they are legally entitled to forage, and an attendant to
accompany the horses when necessary, subject to the following restrictions:
(1) That the expense paid by the United States shall not exceed $50 for each
horse transported. The cost of such shipment will be ascertained in advance, and
if found to exceed $50 for each horse, including transportation of attendant, if any,
the excess must be prepaid by the owner, who must also pay all the expenses of the
attendant other than his transportation.
(2) That the horses are owned by the officer and were used by him in the public
service at the station from which he is ordered to move.
(3) The horses of retired officers or officers ordered to their homes to await retire-
ment, or officers ordered on recruiting service or college detail, or to attend schools
of instruction as student officers, or to effect a voluntary transfer, will not be trans-
ported at public expense. Par. 1069, A. R., 1895.
The Quartermaster's Department may provide transportation of baggage for enlisted
men traveling under orders without troops, not to exceed the following weights:
Noncommissioned officers pounds. . 100
Privates of the Hospital Corps do 100
Other privates do 50
This allowance will accompany each man on the conveyance by which he is trans-
ported, and will include the number of pounds of baggage carried free on the passage
ticket. Par. 1224, A. R., 1901.
^his statute replaces the acts of February 12 (28 Stat. L., 657) and March 3, 1899
(30 ibid., 1068). For an executive interpretation of this enactment see Circular No.
21, A. G. 0., of 1900; for a decision of the Comptroller of July 18, 1900, see Circular
28, A.G.O.,1900.
a A military attache is entitled to the same allowance for baggage in changing his station in a
foreign country that he would have been entitled to in changing his station in the United States.
V Compt. Dec., 55.
6 The term " baggage," in the military sense, and as used in statutes relating to the Army, embraces
almost any article of personal property which does not exceed in weight the limit prescribed by Army
Regulations or general orders. 3 Dig. 2d Compt. Dec., 55.
278 MILITARY LAWS OF THE UNITED STATES.
723- When transportation is furnished by the Quarter-
master's Department, or when the established route of
travel is over any of the railroads above specified, there
shall be deducted from the officers' mileage account, by the
paymaster paying the same, three cents per mile for the
distance for which transportation has been or should have
been furnished.1 Ibid.
Tables of dts- 724. Payment and settlement of mileage accounts of
tances.
ibid. officers shall be made according to distances computed
over routes established, and by mileage tables prepared
by the Paymaster-General of the Army under the direction
of the Secretary of War. Ibid.
TRANSPORTATION BY LAND-GRANT AND BOND-AIDED RAILROADS.
iand-|Sntroads! 725> ^or tne payment of army transportations lawfully
etMar 2 1901 v ^ue sucn land-grant railroads as have not received aid in
P. 31, 907. Government bonds (to be adjusted in accordance with the
decisions of the Supreme Court in cases decided under
such land-grant acts), but in no case shall more than fifty
per centum of full amount of service be paid: Provided,
That such compensation shall be computed upon the basis
of the tariff or lower special rates for like transportation
performed for the public at large, and shall be accepted as
in full for all demands for such service: Provided further,
That in expending the money appropriated by this act, a
railroad company which has not received aid in bonds of
the United States, and which obtained a grant of public
land to aid in the construction of its railroad on condition
that such railroad should be a post route and military road,
subject to the use of the United States for postal, military,
naval, and other Government services, and also subject to
such regulations as Congress may impose restricting the
charge for such Government transportation, having claims
against the United States for transportation of troops and
munitions of war and military supplies and property over
such aided railroads, shall be paid out of the moneys
appropriated by the foregoing provision only on the basis
of such rate for the transportation of such troops and
munitions of war and military supplies and property as
the Secretary of War shall deem just and reasonable under
the foregoing provision, such rate not to exceed fifty per
lrrhis statute replaces the acts of February 12 (28 Stat. L., 657) and March 3, 1899
(30 ibid., 1068). For an executive interpretation of this enactment see Circular No.
21, A. G. O., of 1900; for a decision of the Comptroller of July 18, 1900, see Circular
28, A. G. O., 1900.
MILITAEY LAWS OF THE UNITED STATES. 279
centum of the compensation for such Government trans-
portation as shall at the time be charged to and paid by
private parties to any such company for like and similar
transportation; and the amount so fixed to be paid shall
be accepted as in full for all demands for such service,
* * * dollars.1 Act of March 2, 1901 (31 Stat. Z.,
907).
726. Hereafter all purchases of horses, mules, or oxen,
wagons, carts, drays, ships and other seagoing vessels,
also all other means of transportation, shall be made by
the Quartermaster's Department, by contract, after due
legal advertisement, except in cases of extreme emer-
gency. Act of July 5, 1884 (23 Stat. Z., 110).
727. Hereafter the Quartermaster-General and his offi- pr°Perty for
^ Government sur-
cers, under his instructions, wherever stationed, shall yeys, National
Museum, etc., to
receive, transport, and be responsible for all property bej
turned over to them, or any one of them, by the officers 23> P- 11(>-
or agents of any Government survey, for the National
Museum, or for the civil or naval departments of the Gov-
ernment, in Washington or elsewhere, under the regula-
tions governing the transportation of army supplies, the
amount paid for such transportation to be refunded or paid
by the bureau to which such property or stores pertain.3
Act of July 5, 1884 (23 Stat. Z., 110).
PUBLIC ANIMALS; VETERINARIANS.
Par.
731. Draft animals, restriction.
732. The same, cavalry horses.
733. Veterinarians.
Par.
728. Draft and pack animals, restriction.
729. Purchases of animals by contract.
730. The same, cavalry and artillery
horses.
728. The number of draft animals purchased from this
appropriation, added to those now on hand, shall be lim-
ited to such numbers as are actually required for the serv- £e byrcontractto
ice, and all transportation of stores by private parties for
the Army shall be done by contract, after due legal adver-
tisement, except in cases of emergency, which must be at^^-P-907-
once reported to the Secretary of War for his approval.
Acts of July 5, 1884 (®3 Stat. L.,109); March 2, 1901 (31
ibid., 907).
'The act of February 26, 1900 (31 Stat. L., 214), contained the same requirement.
2 When a contract provides that upon the arrival of a train the Quartermaster's
Department shall examine the stores, and, if found to be in good condition and
delivered in proper time, shall so indorse the bill of lading, upon which payment
shall be made, it will be presumed that such a certificate was made and given when
it appears that the contract was fully performed. Curtis v. U. S., 34 Ct. Cls., 5.
280 MILITAEY LAWS OF THE UNITED STATES.
portltipon°ftoabe 729- Hereafter all purchases of horses, mules, or oxen,
?racturedbyc°n ~ wa£°ns> carts, drays, ships and other seagoing vessels, also
' 1884' v' a^ °ther means of transportation, shall be made by the
Quartermaster's Department, by contract, after due legal
advertisement, except in cases of extreme emergency.
Act of July 5, 1884 (%3 Stat. Z., 110).
artuierlry horses "^* Hereafter all purchases of horses, under appropria-
b°y cbontmctcu ind ^ons *or norses f or the cavalry and artillery and for the
spjuTy°5' 1884 v In^an scouts, shall be made by contract, after legal adver-
23, p. 109. tisement, by the Quartermaster's Department, under
instructions from the Secretarv of War, the horses to be
inspected under the orders of the general commanding the
Army and no horse shall be received and paid for until
duly inspected.1 Act of July 5, 1884 (23 Stat. Z., 109).
^Draft animals. 73 j Hereafter no part of this appropriation shall be ex-
v S26Pp Hi 1888> Pended m the purchase for the Army of draft animals
until the number on hand shall be reduced to five thousand.
and hereafter shall only be expended for the purchase of
a number sufficient to keep the supply up to five thousand.2
Act of September %%, 1888 (25 Stat. Z., 486).
m^Serofahorses 732- The number of horses purchased under this appro-
*£v£eountedpriation, added to the number on hand, shall be limited to
28fpb> ^b!8Mar! the actual needs of the mounted service; and unless other-
2^1901, v. si, p. wjge ordered by the Secretary of War no part of this
appropriation shall be paid out for horses not purchased
by contract, after competition duly invited by the Quar-
termaster's Department, and an inspection by such
Department, all under the direction and authority of the
Secretary of War. Act of March 2, 1901 (31 Stat. Z.,
906).
veterinarian^. 733, Such number of veterinarians as the Secretary of
s. 20, v. si,' p. 753. War may authorize shall be employed to attend the
animals pertaining to the Quartermaster's or other De-
partments not directly connected with the cavalry and
artillery regiments, at a compensation not exceeding one
hundred dollars per month. Sec. 20, Act of February 2,
1901 (31 Stat. Z., 753).
1 So much of the act of July 5, 1884, as requires these purchases to be reported to
the Secretary of War for transmission to Congress was repealed by the act of March
2, 1895 (28 Stat. L., 787).
2 By the act of June 7, 1898 (30 Stat L., 433), the operation of this statute was sus-
pended, at the discretion of the Secretary of War, during the period of the existing
war; by the act of March 3, 1899 (ibid., 1350), its operation was further suspended,
at the discretion of the Secretary of War and subject to the further discretion of Con-
gress, until March 1, 1900; by the act of February 24, 1900 (31 Stat. L., 32) , the sus-
pension was extended, under the conditions above set forth, until June 30, 1901.
MILITARY LAWS OF THE UNITED STATES. 281
BARRACKS AND QUARTERS.
Par.
Par.
737. Restriction on expenditures.
738. Quarters in kind^ to be furnished
to officers.
739. Absent officers, rights of.
734. Permanent barracks and quarters,
construction.
735. Barracks and quarters for seacoast
artillery.
736. Quarters for hospital stewards.
734. Permanent barracks or quarters and buildings and
structures of a permanent nature shall not be constructed 83MsaritV8n; £
unless detailed estimates shall have been previously sub- 43|^(
mitted to Congress, and approved by a special appropria-
tion for the same, except when constructed by the troops;
and no such structures, the cost of which shall exceed
twenty thousand dollars, shall be erected unless by special
authority of Congress.1
735. For the erection of barracks and quarters for artil- ql*jgj£ !gr
lery in connection with the project adopted for seacoasl
defense there shall not hereafter be expended at any one 81» P- 624>
point more than one thousand two hundred dollars per
man for each man required for one relief to man the guns
at the post up to eighty-three men, the present permanent
strength of a battery, enlisted and commissioned, and
for each man required beyond this number six hundred
dollars per man, from any appropriation made by Con-
gress, unless special authority of Congress be granted for
a greater expenditure.2 Act of June 6, 1900 (31 Stat. Z.,
736. Hereafter the posts at which such quarters [for
hospital stewards], shall be constructed shall be designated arp|-b 27 1893 v
by the Secretary of War, and such quarters shall be built27- p>484>
by contract, after legal advertisement, whenever the same
is practicable. Act of February $7, 1893 (27 Stat. L. , 484).
737. Hereafter no expenditures exceeding five hundred pend?turesU ex~
dollars shall be made upon any building or military post,
or grounds about the same, without the approval of the secretary ofwar
Secretary of War for the same, upon detailed estimates pavements ex-
of the Quartermaster's Department, and the erection, ^Feb^iSs.v.
construction, and repairs of all buildings and other pub- 27> p- 484>
lie structures in the Quartermaster's Department shall,
1 The Quartermaster's Department alone is charged with the duty and respon-
sibility of erecting quarters. Travers v. U. S., 5 Ct. Cls., 329.
2 This enactment replaces the requirement of the act of July 1, 1898 '(30 Stat. L.,
629), which restricted expenditures on artillery posts for seacoast defense to $60,000
for a one-battery post and $20,000 additional for each additional battery.
282
MILITARY LAWS OF THE UNITED STATES.
so far as may be practicable, be made by contract, after
due legal advertisement.1 Act of February 27, 1893 (27
Stat. L.,484).
kind atotbeSfur1- ?38. At all posts and stations where there are public
ntehed to offi- quarters belonging to the United States, officers may be
I8??v92oupei44 furnished with quarters in kind in such public quarters,
and not elsewhere, by the Quartermaster's Department,
assigning to the officers of each grade, respectively, such
number of rooms2 as is now allowed to such grade by the
rules and regulations of the Army.3 Sec. £, act of June
17, 1878 (W Stat. Z., 144)-
1 This requirement has appeared in the several acts of appropriation since that of
1884.
2 For rules respecting the allowance and assignment of quarters at military posts,
see paragraphs 1088-1100 Army Regulations of 1901.
LOCKERS.
The Quartermaster's Department will provide in all permanent barracks a box
locker for each enlisted man for his uniform and extra clothing. Each man will
provide his own lock. Par. 1085, ibid.
3 The following table shows the number of rooms, the quantity of fuel, and the
allowance of cooking and heating stoves to be supplied for the use of officers and men
in quarters and barracks:
Increased
Cords
allowance
Rooms.
of wood
per
from Sep-
tember to
quar-
of-
month.
April, both
nee.
inclusive.
.
ij
1
i
bis
£
So
s?
£
5
n£
•8 .
s
a
2
rH
§|
4
•^
B
'
't
I
i
i
5
f.
™B
qj tS
"8
|
1
f
?
<
o
V.
Id
1
1 .
TO
i
35
I
1
H
A lieutenant-general or major-general
1
\
1
...
1
l
5
4
p
it
I
4
1
1
-
A lieutenant-colonel or major
1
1
JH
t
jt
8
1
A captain or chaplain
•>
1
f
i
2
1
A lieutenant
1
1
i
2
1
t
1
1
The Commanding General of the Army
i
3
2
1
1
i
t
3
2
1
The commanding officer of a territorial department
The aids to the commanding officer of a territorial depart-
ment
1
An assistant or deputy quartermaster-general, an assistant
commissary-general of subsistence, an assistant surgeon-
general, the assistant and deputy paymaster-general, and
the chief quartermaster and chief commissary at the
2
2
1
i
The commanding officer of a regiment or post, or .paymas-
ter, quartermaster, assistant quartermaster, commissary,
and military storekeeper eacn
1
1
1
An assistant adjutant-general, an Inspector-general, an
acting inspector-general, an engineer officer, (a) an ord-
nance officer, (a) a signal officer, a judge-advocate or an
acting judge-advocate, and the senior medical officer,
when stationed on duty as any place not in the field, (a)
each . .
1
1
i
1
a Except at Military Academy.
MILITAEY LAWS OF THE UNITED STATES.
283
to
739. Hereafter officers temporarily absent on duty in the
field shall not lose their right to quarters, or commutation JJj
thereof, at their permanent station while so temporarily q™5f S um v
absent. A& of February 27, 1893 (27 Stat. L., 4-78}. 27-P- "
[Footnote «— Continued.]
Rooms.
Cords
of wood
per
month.
Increased
allowance
from Sep-
tember to
April, both
inclusive.
For
quar-
ters.
For
of-
fice.
i
i
i
w
As quarters.
As kitchen.
| As office.
From May 1 to Aug. 31.
From Sept. 1 to Apr. 30.
Between 36th and 43d deg.
N. latitude, one-fourth.
0!
d
9
$
"S
rr1 *O
32 *^
"* A
*o
A
1
Heating stoves.
Cooking stoves or ranges.
An acting assistant quartermaster, an acting commissary
of subsistence, an adjutant, when approved by the Quar-
1
1
1
i
2
i
3
2
1
i
i
i
A
i
&
I
*
i
A
*
*
A
»
A
i
J
*
A
1
A sergeant-major, quartermaster-sergeant, sergeant of the
post noncommissioned staff, hospital steward, veterinary
surgeon, signal sergeant; (a) a regimental, squadron, and
battalion so want-major, quartermaster-sergeant, ser-
geant o* the post noncommissioned staff, hospital stew-
ard, and chief musician and enlisted men of the signal
corps when employed as signal sergeants, each
1
1
&
i
A
1
Superintendent national cemetery
1
Each noncommissioned officer, musician, private, and hos-
pital matron
Each necessary fire for thesick in hospital, each dispensary
and hospital mess room, at a military post or station, to
be regulated by the surgeon and commanding officer, not
exceeding
1
Kor ^neral hospitals, when necessary, not exceeding, for
each bed
Each guard fire, to be regulated by the commanding officer,
1
1
1
Each necessary fire for military courts or boards, at a rate
Storehouse of commissary and quartermaster, whenneces-
Each employee of the Quartermaster's, Subsistence, or
Medical Department to whom subsistence in kind is
A
For library, reading room, schoolroom, chapel, and gym-
nasium, 1 healing stove for each, and when the garrison
exceeds 150 enlisted men, 2 heating stoves, and such
quantity of fuel for the same as may be certified to as
necessary by the officers in charge and approved by the
commanding officer
For a company: 2 large stoves in dormitory, 1 large stove
in each mess room and day room, 1 small stove for each
of the two rooms for noncommissioned officers, 1 small
stove for the library, and 1 cooking stove or range suffi-
cient to cook its food
1
For each authorized room as quarters for civilian em-
1
For each six civilian employees to whom fuel is allowed
1
For me^s of civilian employees
1
1
1
i
a Except when serving in a detachment.
Par. 1006, A. K., 1895.
284 MILITARY LAWS OF THE UNITED STATES.
FUEL AND FORAGE.
fuei^nd^orage1 "^§ Allowance of or commutation for fuel to commis-
isfl c\\oup ei5o si°ne(l officers is hereby prohibited; but fuel may be
furnished to the officers of the Army by the Quartermas-
ter's Department, for the actual use of such officers only,
at the rate of three dollars per cord for standard oak wood,
or at an equivalent rate for other kinds of fuel, according
to the regulations now in existence; and forage in kind
may be furnished to the officers of the Army by the Quar-
termaster's Department, only for horses owned and act-
ually kept by such officers in the performance of their
official military duties when on duty with troops in the
field or at such military posts west of the Mississippi
River, as may be from time to time designated by the Sec-
retary of War, and not otherwise as follows :
To the General, five horses;
To the Lieutenant-General, four horses;
To a major-general, three horses;
To a brigadier-general, three horses;
To a colonel, two horses;
To a lieutenant-colonel, two horses;
To a major, two horses;
To a captain (mounted), two horses;
To a lieutenant (mounted), two horses;
To an adjutant, two horses;
To a regimental quartermaster, two horses.1 Sec. 8, act
of June 17, 1878 (20 Stat. Z., 150).
NO discrimina- 741. There shall be no discrimination in the issue of
tion to officers . . . _T.
serving east of rorage against otncers serving east 01 the Mississippi
River. " River, provided they are required by law to be mounted,
Feb. 24, 1881, v. J J. _ —, ,'
21, p. 347. and actually keep and own their animals. Act oj Feb-
ruary 24, 1881 (21 Stat. Z., 347).
1This statute, which replaces section 1271, Revised Statutes, contains the added
condition that horses shall not only be "actually kept" but "owned" by officers in
the performance of their military duties.
The right conferred upon officers of the Army by the act of June 18, 1878 (20 Stat.
L., 150), to purchase fuel for their actual use only, in the manner and at the terms
prescribed by said act, pertains to all officers of the Army, irrespective of the nature
of the duties upon which they are engaged. No part of the cost of fuel so sold is
properly chargeable to the appropriation for any public work, unless provision is
expressly made therein for such cost. 3 Dig. 2d Compt. Dec. , par. 655. For allow-
ances of fuel as established by regulation, see table in note 5 to par. 738, ante.
The forage ration for a horse is 14 pounds of hay and 12 pounds of oats, corn, or
barley; for a mule, 14 pounds of hay and 9 pounds of oats, corn, or barley. Depart-
ment commanders will reduce the forage ration when necessary. Par. 1154, A. R.,
1901.
One hundred pounds of straw per month is allowed for bedding to each horse or
mule in public service. At posts where straw is not furnished, hay will be issued
and used for bedding. Par. 1162, ibid.
Forage is furnished only to officers for the horses owned and actually kept by them
MILITARY LAWS OF THE UNITED STATES.
285
WORKING PARTIES AND EXTRA-DUTY PAY.
Par.
742. Rates.
743. Details to be in writing.
744. The same, by whom made.
Par.
745. Rates of pay.
746. Restriction in time of war.
747. The same in insular possessions.
742. When soldiers are detailed for employment as artifi- rafef of payUty;
cers or laborers in the construction of permanent military ^"
works, public roads, or other constant labor of not less f's
than ten days' duration, they shall receive, in addition tojf*
their regular pay, the following compensation : [Fifty cents ^
per day for mechanics, artisans, school-teachers, and thirty-
five cents per day for other clerks, teamsters, laborers, and
others.] This allowance of extra pay shall not apply to
the troops of the Ordnance Department.
in the performance of their official duties when serving with troops in the field or
at military posts and stations and for the following number: To a lieutenant-general,
four, to a major-general or a brigadier-general, three; to a colonel, lieutenant-colonel,
major, captain, or lieutenant, mounted, and regimental adjutant and quartermaster,
each two. Par. 1157, ibid.
Mounted officers will not use public horses and at the same time draw forage for
those they own; nor will they use public animals except as authorized by regula-
tions. Should circumstances render it necessary, an officer may be temporarily fur-
nished public horses, but during such period he will not be permitted to draw forage
for a private horse. Par. 1158, ibid.
An officer not mounted may purchase forage for two horses kept for his own use,
for which he will be charged' cost, including transportation. The sale of forage to
mounted officers is forbidden. Par. 1159, ibid.
For a case, in which certain officers of the Army were ordered by the Secretary of
War to make restitution to the United States of certain sums of money representing
quantities of fuel which had been consumed by them without being paid for as
required by law, see Gen. Court-martial Orders No. 85, War Dept, of 1882.
1 WORKING PARTIES — EXTRA AND SPECIAL DUTY MEN.
Troops will not be employed in labors that interfere with their military duties
except in cases of necessity. Par. 181, A. R., 1901.
Enlisted men detailed to perform specific services which remove them temporarily
from the ordinary duty roster of the organization to which they belong will be
reported on extra duty if receiving increased compensation therefor, otherwise, on
special duty. They will not be placed on extra duty, except as bakers or to perform
the necessary routine services in the Quartermaster's and Subsistence Departments,
without the sanction of the department commander, nor will they be employed on
extra duty for labor in camp or garrison which can be properly performed by fatigue
parties. Allotments of funds for the payment of extra-duty men at department
headquarters and depots under the control of department commanders will be made
only with the approval of the Secretary of War. Duty of a military character must
be performed without extra compensation. Par. 164, A. R., 1895.
The provisions of section 6 of the act approved April 26, 1898, abolishing extra-
duty pay in time of war, applies to enlisted men in every department of the Army,
and, as war existed when the act was passed, enlisted men ceased to be entitled to
extra-duty pay upon the date of its approval. Circular 15, A. G. O., 1898. See, also,
G. O. 77, A. G. O., 1898.
The detail of a noncommissioned officer on extra duty other than that of overseer
will not be made without the approval of the Secretary of War. A noncommissioned
officer will not be detailed on any duty inconsistent with his rank and position in the
military service. Par. 166, A. R., 1895.
Company artificers, farriers, blacksmiths, saddlers, and wagoners will not receive
extra-duty pay unless detailed on extra duty in the Quartermaster's Department,
wholly disconnected from their companies. Par. 186, A. R., 1901.
Soldiers on extra duty will be paid the extra rates of pay allowed by law for the
286 MILITARY LAWS OF THE UNITED STATES.
writing8 tobein 743< Working parties of soldiers shall be detailed for
i76Usy^3V^u'p' employment as artificers or laborers, in the construction of
98$er..i285,K.s. permanent military works or public roads, or in other con-
stant labor only upon the written order of a commanding
officer, when such detail is for ten or more days.
fle?l-tiiowimadet "^' Details to special service from forces in the field
>
*sa353>v18i2' c' s^a^ ^e made only with the consent of the commanding
7.i2l6,Bl officer of the forces-
dmfplyfextra~ 745> Extra-duty pay hereafter shall be at the rate of
23Julyno 1884' v' -fr^ty cents per day for mechanics, artisans, school teachers,
and clerks at Army, division, and department headquar-
ters, and thirty -five cents per day for other clerks, team-
sters, laborers, and others.1 Act of July 5, 1884 (23 Stat.
L.,110.)
ttaufofwa?1 in 7^' ^n war ^me no a(^ditional increased compensation
isfs v 3opr' 365 s^a^ ^e allowed to soldiers performing what is known as
'extra or special duty. Sec. 6, act of April 26, 1898 (30
Stat. L., 365}.
MaeJari9oo v ^' Enlisted men receiving or entitled to the twenty
31, p. 211! per centum increased pay herein authorized shall not be
entitled to or receive any additional increased compensa-
tion for what is known as extra or special duty. Act of
May 26, 1900 (31 Stat L.,
duty performed and for the exact number of days employed; and no greater number
of men will be emyloyed on extra duty at any time than can be paid the full legal
rates for the time employed from the funds provided. Payments made in violation
of the above rules will be charged against the officers who ordered the details. Par.
187, ibid.
Extra-duty men will be held to such hours of labor as may be expedient and nec-
essary; but, except in case of urgent public necessity, as in military operations, eight
hours will be considered a day's work. For all hours employed beyond that num-
ber the soldier will receive additional compensation — the extra hours being computed
as fractions of a day of eight hours' duration. Par. 189, ibid.
Details of enlisted men for extra and special duty will be limited to actual neces-
sities, which will be determined by post commanders in accordance with limits pub-
lished in orders from the War Department. Allotments to posts of funds for extra-
duty pay are made by department commanders from allotments made to depart-
ments for the purpose, and must not be exceeded without special authority from
department commanders. Par. 190, ibid.
^ Enlisted men of the several staff departments are not entitled to extra-duty pay
for services rendered in the department to which they belong. To entitle them to
such compensation they must be detailed by competent orders and must have per-
formed duty in another department than that in which they are enlisted. Under
existing orders enlisted men of the Ordnance Department are entitled to extra-duty
pay when performing duty in the Quartermaster's Department. Circular II, A. G.
O., 1886; I, ibid, 1887, and par. 185, A. R., 1901.
Clerical services at Army, division, and department headquarters have, since the
act of July 29, 1886 (24 Stat. L., 167), been performed by a corps of general-service
clerks and messengers. By the act of August 6, 1894, this force ceased to exist as a
part of the enlisted strength of the Army.
The act of March 15, 1898 (30 Stat. L., 323), and prior acts of appropriation fix
the sum that may be expended for the pay of extra-duty men at $200,000 per annum;
they also contain the requirement that "no payment of extra-duty pay shall be
made at any greater rate per day than is fixed by law for the class of persons
employed and the work done therein."
MILITARY LAWS OF THE UNITED STATES. 287
CIVILIAN EMPLOYEES.
748. The number of and total sum paid for civilian em- ei^pefoymeSt. °n
ploy ees in the Quartermaster's Department, including those 31Mpar^ 1901»v-
paid from the funds appropriated for regular supplies,
incidental expenses, barracks and quarters, army trans-
portation, clothing, camp and garrison equipage, shall be
limited to the actual requirements of the service, and no
employee paid therefrom shall receive a salary of more
than one hundred and fifty dollars per month, except upon
the approval of the Secretary of War.1 Act of March %,
1901(31 Stat. L., 906}.
CLOTHING.
Par.
754. Uniforms not to be sold.
755. Selling, spoiling, etc., clothing.
756. -Altering clothing.
757. Restriction, cost of altering.
Par.
749. President to prescribe.
750. Gratuitous issues.
751. Returns and accounts.
752. Clothing allowances.
753. Clothing balances.
749. The President may prescribe the uniform of the ^^£3 b°the
Army and quantity and kind of clothing which shall be Prjsird 24*1816 c
issued annually to the troops of the United States. 69sec?i296PB29!'
750. The Secretary of War may, on the recommendation su^atuitous is"
of the Surgeon-General, order gratuitous issues of clothing r™Al$ v2'^868'
to soldiers who have had contagious diseases, and to hospi- 2^c j298 B g
tal attendants who have nursed them, to replace any arti-
cles of their clothing destroyed by order of the proper
medical officers to prevent contagion.8
JThe act of March 3, 1885 (23 Stat. L., 359), restricted the number of civilian
employees in this Department to 1,000; the act of February 12, 1895 (28 ibid., 661),
restricted the payments for the services of civilian employees to $1,000,000, and pro-
vided that no employee should receive as salary more than $150 per month without
the specific authority of law.
The amount to be expended for the payment of civilian employees was fixed at
$1,600,000 by the act of March 3, 1883 (22 Stat. L., 459); at $1,500,000 by the acts of
July 5, 1884 (23 Stat. L., Ill), March 3, 1885 (23 Stat. L., 360), and June 30, 1886
(24 Stat. L., 98); at $1,300,000 by the acts of February 9, 1887 (24 Stat. L., 399),
September 22, 1888 (25 Stat. L., 486), March 2, 1889 (25 Stat. L., 830), June 13, 1890
(26 Stat. L.. 154), and February 24, 1891 (26 Stat. L., 776); at $1,200,000 by theacts
of July 16, 1892 (27 Stat. L., 180), and February 27, 1893 (27 Stat, L., 484); at
$1,100,000 by the act of August 6, 1894 (28 Stat. L., 240), and at $1,000,000 by the
acts of February 12, 1895 (28 Stat, L., 661), March 16, 1896 (29 Stat. L., 66), March
2, 1897 (ibid., 614), and March 15, 1898 (30 ibid., 323); by the acts of June 7, 1898,
(30 ibid., 433), March 3, 1899 (ibid., 1350), and February 24. 1900 (31 ibid., 32), the
restrictions imposed in the statutes above referred to were suspended, in the discretion
of the Secretary of War or subject to the further order of Congress, until June 30, 1901.
2 GRATUITOUS ISSUES.
Gratuitous issues of clothing may be made, under the provisions of section 1298,
Revised Statutes, to replace articles destroyed to prevent the spread of contagious
diseases. Par. 1319, A. R., 1901.
Should it become necessary to issue new clothing for use in the burial of a deceased
288 MILITARY LAWS OF THE UNITED STATES.
ACCOUNTABILITY FOR CLOTHING.
ciofh?ngBand ^1. Every officer who receives clothing or camp equi-
*26 c Pa£e ^or ^ne use °^ ^^s command, or for issue to the troops,
Febi877v render to the Quartermaster-General, at the expira-
29' i89424v; 2sap' ti°n °^ eacn re8'ular quarter of the year, quarterly returns
4?Sec 1221 R s °^ sucn supplies, according to the forms which may be
prescribed, accompanied by the requisite vouchers for any
issues which shall have been made.1
clothing ai- 752. The money value of all clothing overdrawn by the
c is^ss 2?% ^4' s°ldier beyond his allowance shall be charged against him,
P,wP8; Ji?y *o' every six months, on the muster roll of his company, or on
lo/^i, C. lol, S. o,
v<c17' $•*•'•» B his final statements if sooner discharged, and he shall re-
sec.iauz, K. ». t L '' • i i • i
ceive pay for such articles of clothing as have not been
issued to him in any year, or which may be due to him at
the time of his discharge, according to the annual estimated
value thereof. The amount due him for clothing, when
he draws less than his allowance, shall not be paid to him
until his final discharge from the service.1
soldier, as in the case of a man who dies away from his proper command and under
circumstances rendering such issues imperatively necessary, the expense of the issue
will be borne by the United States, and the clothing will be dropped from the returns
of the issuing officer on the orders of the commanding officer, which must recite the
necessity for the issue. Par. 1320, ibid.
Where the clothing of certain enlisted men of volunteers was destroyed near San-
tiago, Cuba, in 1898, by order of the proper military authority, on account of having
been exposed to contagion, and replaced by new clothing which was charged to the
enlisted men receiving it on their clothing accounts, it was decided by the Comp-
troller of the Treasury, November 28, 1900, that the issue was proper under the
circumstances of the case, and that the charges therefor in the clothing accounts were
erroneous and should be canceled. Circular No. 51, A. G. O., 1900.
1 A table showing the price of clothing and equipage for the Army, the allowance
of clothing in kind to each soldier for each year of his enlistment, and his clothing
money allowance for each year and day thereof, also the allowance of equipage to
officers and enlisted men, will be published in orders. Par. 1286, A. R., 1901.
Each soldier's clothing account will be kept by the company or detachment
commander in the company clothing book. The account will show the money
value of the clothing received by the soldier at each issue, and his receipt therefor
will be taken in the book. Par. 1303, ibid.
Company and detachment commanders will settle the clothing account of every
enlisted man of their respective commands six months after the date of his enlist-
ment, and thereafter on June 30 and December 31 of each year. The entire amount
found due the United States for the periods embracing the dates of settlement will
be charged to the soldier upon the pay rolls. The money allowance of clothing for
the first year will be allotted by half years. Par. 1304, ibid.
The balance due the soldier at either of these dates will be credited to him upon
the company clothing book. It will not be placed upon the pay rolls, but the final
balance due at date of discharge will be entered upon his final statements. In
case of transfer the balance due the soldier or the United States will be entered on
the descriptive list. All balances of this character will be stated in words and
figures. Par. 1305, ibid.
The clothing account of a soldier who deserts should be settled in full to the date
of desertion. The balance due him or the United States will be entered on the
next pay rolls after date of desertion. The amount due the United States or the
soldier at date of desertion should be ascertained by crediting the soldier with
clothing allowance from date of last clothing settlement to the date of desertion
(excluding the day of desertion) and debiting him with the money value of all cloth-
MILITARY LAWS OF THE DOTTED STATES. 289
763. The amounts of deposits and clothing balances a ecu-
inulating to the soldier's credit under sections thirteen atMay^5ri872 c
hundred and two and thirteen hundred and five shall, ^s'5>v- 17-V-
when payable to him upon his discharge, be paid out of 8ec.i308,R.s.
the appropriations for "pay of the Army" for the then
current fiscal year. Sergeants of ordnance shall receive sergeants of
the same allowance of clothing as other sergeants in like July Ci6, 1392,
staff departments. Act of July 16, 1892 (27 Stat. L. , 174). V'
754. The clothes, arms, military outfits, and accouter- uniforms and
ments furnished by the United States to any soldier shall tc^e'Vo Fd,
not be sold, bartered, exchanged, pledged, loaned, or given cnanged.ioaned"
away: and no person not a soldier, or duly authorized offi- Mar. 3, ises, c.
I ,, TT £ j Q, ., . £ . 75, s. 23, v. 12, p.
cer of the United States, who has possession of any such 735.
.r, .„. J Sec.3748,B.S.
clothes, anus, military outfits, or accouterments, so fur-
nished, and which have been the subjects of any such sale,
barter, exchange, pledge, loan, or gift, shall have any
right, title, or interest therein; but the same may be seized
and taken wherever found by any officer of the United
States, civil or militaiy, and shall thereupon be delivered
to any quartermaster, or other officer authorized to receive
the same. The possession of any such clothes, arms, mili-
tary outfits, or accouterments by any person not a soldier
or officer of the United States shall be presumptive evidence
of such a sale, barter, exchange, pledge, loan, or gift.
755. Any soldier who sells or through neglect loses or selling or
•i i • i i ji • t \i •• spoiling cloth-
SpOlls his horse, arms, clothing, or accouterments shall being, etc.; pen-
punished as a court-martial may adjudge, subject to such & July 27, 1392, v.
limitation as may be prescribed by the President by virtue i? Art.' war.
of the power vested in him. Seventeenth article of war.
ALTERING CLOTHING.
756. It shall be lawful for the commanding officer of each in Altering cloth-
regiment, whenever it may be necessary, to cause the coats, 69F|bi97p1827473 c'
vests, and overalls or breeches which may from time to sec. i22o,R.s.
time be issued to and for his regiment to be altered and
ing drawn by him; the difference between the two amounts will be the amount due
the United States or the soldier. Par. 1306, ibid.
A deserter is entitled to clothing allowance from the date he surrenders or is
apprehended, and the amount due nim will be computed from the tables then and
subsequently in force. A new clothing account will be opened without reference to
his account at date of desertion. Par. 1307, ibid.
Clothing allowance accruing to a soldier after return to the service from desertion
will not be used to reduce the amount of the soldier's indebtedness at date of deser-
tion; the full amount of the soldier's indebtedness must be charged on the roll, to
be deducted by the paymaster when he settles the soldier's account. Par. 1309,
ibid.
Section 1297, Revised Statutes, forbidding the allowance of clothing to ordnance-
sergeants, was repealed by the act of July 14, 1892. 27 Stat. L., 578,
22924—08 - 19
290 MILITAEY LAWS OF THE UNITED STATES.
new made, so as to better to fit them to the persons respec-
tively for whose use they shall be delivered; and for defray-
ing the expense of such alterations, to cause to be deducted
and applied out of the pay of such persons a sum or sums
not exceeding twenty -five cents for each coat, eight cents
for each vest and for each pair of overalls or breeches.
M^1 2 °i889°8v' ^^ Hereafter the regimental price fixed for altering
25, 83i. an(j fitting soldiers' clothing shall not exceed the cost of
making the same at the clothing depots. l Act of March %,
1889 (25 Stat. Z., 831).
HISTORICAL NOTE. — The office of Quartermaster-General was created during the war
of the Revolution by a resolution of Congress of June 16, 1775; by a subsequent
resolution dated July 19, 1775, the appointment to the vacancy was vested in Gen-
eral Washington, and by a resolution of December 22, 1775, the rank of colonel was
attached to the office. The appointment was conferred upon Thomas Mifflin, of
Pennsylvania, who continued to exercise its functions until August 5, 1780, save for
the period between June 5 and October 1, 1776, when the office was held by Col.
Thomas Moylan. Upon the resignation of General Mifflin he was succeeded by
Gen. Nathaniel Greene, who was appointed to another command on August 5, 1780,
and was succeeded by Col. Timothy Pickering, who continued to perform the duties
of the office until the close of the war. On July 25, 1785, the office expired by
statutory limitation. After the close of active military operations in 1781 the prac-
tice of supplying the troops by a system of contracts which had been resorted to
during the war, and had been approved by a resolution of Congress dated October 2,
1778, was resumed and continued to exist until its failure as an efficient method of
supply was demonstrated during the war of 1812.
The office of quartermaster was established by sections 5 and 6 of the act of March
3, 1791 (1 Stat. L., 222); the incumbent of this office was designated as Quarter-
master-General, and the rank of lieutenant-colonel was conferred by sections 10 and
11 of the act of March 3, 1795 (ibid., 431), and the office as thus established was
continued in the acts to ascertain and fix the military establishment, approved May
30, 1796 (ibid., 483), and March 3, 1797 (ibid., 507). The provisional establishment
authorized in contemplation of war with France by the acts of May 28, 1798 ( ibid. , 558) ,
and March 3, 1799 (ibid.-, 740), made provision for a Quartermaster-General, with the
rank of major-general, with deputy quartermasters-general for armies and quarter
masters for divisions, who were to be selected from the line. Operations looking to
an increase of the Army were suspended by the acts of February 20, 1800 (2 Stat.
L., 7), and May 14, 1800 (ibid., 85). The duties hitherto performed by the Quarter-
master's Department were, by section 3 of the act of March 16, 1802 (ibid., 133),
devolved upon the Paymaster-General, and upon the military agents and assistant
military agents authorized by that enactment, and this arrangement continued until
the establishment of the Quartermaster's Department in 1808.
The procurement of supplies for the military establishment during the period
immediately following the organization of the Government under the Constitution
was regulated by section 5 of the act of May 8, 1792 (1 Stat. L., 280), which con-
tained the requirement that "all purchases and contracts for supplying the Army
with provisions, clothing, supplies in the Quartermaster's Department, military
stores, Indian goods, and all other supplies or articles for the use of the Department
of War be made by or under the direction of the Treasury Department." The office
of purveyor of public supplies in the Treasury Department was created by the act of
February 23, 1795 (ibid., 419), and this officer was to perform the duties, in connection
with contracts and purchases, which had been prescribed in the act of May 8, 1792.
The power to make purchases for the military establishment, by contract or other-
wise, was vested in the Secretary of War by section 3 of the act of July 16, 1798
1 LAUNDRY WORK FOR RECRUITS AT DEPOTS.
The Quartermaster's Department is authorized to pay from the appropriation for
clothing and equipage a sum not exceeding $1.50 for the laundry work of each recruit
at rendezvous and stations who has no funds of his own. The expenditure will be
charged on the clothing account of the recruit and so noted on his descriptive and
assignment card. Par. 1316, A. R., 1901.
MILITARY LAWS OF THE UNITED STATES. 291
(ibid., 610); and by section 6 of the same enactment, the corresponding power was
withdrawn from the purveyor of public supplies, the purpose of the statute being to
vest the power of purchase in the Secretary of War and that of auditing the vouch-
ers of purchase in the accounting officers of the Treasury. By the act of March 3,
1809 (2 ibid., 535), a method of making purchases and of accounting for the same
was prescribed by statute.
The Quartermaster's Department, eo nomine) was established by the act of March
28, 1812 (2 Stat. L., 690), and consisted of a Quartermaster-General with the rank of
brigadier-general, four deputy quartermasters, and as many assistant deputy quarter-
masters as, in the opinion of the President, the public service might require; in sec-
tion 3 the duties of the department were denned. A commissary -general of purchases
was also authorized, and a purchasing department was established, to consist of a
commissary-general of purchases, a deputy for each division, six assistant commissa-
ries of issues, and as many military storekeepers as the service might require.
The duties of the purchasing department, which were to some extent in conflict
with those prescribed for the Quartermaster's Department, appear to have been
restricted to the procurement of subsistence stores and supplies, leaving the purchase
of forage, the provision of transportation, etc., to the Quartermaster-General. The
act of April 23, 1812 (ibid., 710), established a corps of artificers as a component
part of the Quartermaster's Department; and by the act of May 22, 1812 (ibid., 742),
a force of barrack masters was authorized, and officers of the department were
required to give bond for the faithful expenditure of public moneys and accounting
for all public property which might come into their hands. The office of superin-
tendent-general of military supplies was created by the act of March 3, 1813 (ibid.,
816), and charged with the duty of supervising the rendition and audit of accounts
and returns from officers in the military service; this office was abolished by the act
of March 3, 1817 (3 ibid., 366), the duties of audit being transferred to the accounting
officers of the Treasury.
In the reorganization of the staff, which was accomplished by the act of April 24,
1816 (3 Stat. L., 297), the services of the Quartermaster-General were retained and a
deputy quartermaster-general was authorized for each division and an assistant for
each brigade, who were to supersede the existing quartermasters of brigades. By
section 3 of the act of April 14, 1818 (ibid., 426), the department was to consist of a
Quartermaster-General (brigadier-general), four assistant deputy quartermasters-
general, and as many additional assistants as the President might deem proper. At the
general reduction of 1821 the strength of the department was fixed at a Quartermaster-
General (brigadier-general), two quartermasters (majors of cavalry), and ten assistant
quartermasters, to be detailed from the line with $10 per month additional compen-
sation. By section 4 of the act of May 18, 1826 (4 ibid., 173), two quartermasters
and ten assistants were added, who were also to be taken from the line. This statute
imposed upon the department the duty of distributing (but not purchasing) the
clothing, camp and garrison equipage required for the use of the troops. By section
9 of the act of July 5, 1838 (5 ibid., 256), two assistant quartermasters-general
(lieutenant-colonels), and eight assistant quartermasters (captains) were added, and
officers already in the department were placed on the same footing in respect to rank,
pay, and emoluments (that of officers of dragoons of corresponding rank) as those
therein authorized; forage and wagon masters, not to exceed twenty in all, were also
authorized. The office of commissary-general of purchases was abolished by section
3, act of August 23, 1842 (5 ibid.., 512), and its duties were merged in those required
to be performed by the Quartermaster's Department.
At the outbreak of the war with Mexico provision was made for the expansion of
the department in section 5, act of June 18, 1846 (9 Stat. L.,17), by the appoint-
ment of a quartermaster (major) for each brigade and an assistant quartermaster
(captain) for each regiment. By section 10, act of February 11, 1847 (ibid., 126),
four quartermasters and ten assistant quartermasters were added to the department;
by section 10, act of July 19, 1848 (ibid., 247), so much of the act of February 11,
1847, as required the discharge of the additional officers therein authorized was
repealed. Five military storekeepers were added by the act of March 3, 1857 (11
ibid., 200).
For the volunteer forces called into the service at the commencement of the war
of the rebellion, brigade quartermasters (captains) were authorized for each brigade,
and the permanent force of the department was increased by the addition of one
colonel, two lieutenant-colonels, four majors, and twenty captains by section 3 of the
act of August 3, 1861 (12 Stat. L., 287); captains after fourteen years' service were to
be advanced to the grade of major, and wagon masters and teamsters were authorized
with the pay and allowances of sergeants and corporals, respectively. The number
of military storekeepers was increased to twelve by section 8 of the act of 1862
292 MILITARY LAWS OF THE UNITED STATES.
(ibid., 509). The office of the Quartermaster-General was reorganized into eight
divisions, and six inspectors and ten chief quartermasters of armies and departments
(colonels) and division quartermasters with the rank of major were authorized for
the period of the war.
At the general reorganization of 1866, the strength of the department was increased
to the following: One Quartermaster-General (brigadier-general), six assistant quar-
termasters-general (colonels), ten deputy quartermasters-general (lieutenant-colo-
nels), fifteen quartermasters (majors), and forty-four assistant quartermasters (cap-
tains), section 13, act of July 28, 1866 (14 Stat. L., 334) . The vacancies created by the
act were to be filled by the appointment of persons who had served in the Quarter-
master's Department during the war of the rebellion; so soon as the vacancies created
by the act had been once filled, however, there were to be no appointments or pro-
motions to the grades of captain and major until the number of officers in tnose
grades had been reduced to twelve and thirty respectively. Promotions and appoint-
ments were prohibited until the further order of Congress by section 6, act of
March 3, 1869 (15 Stat. L., 318, sec. 1194, R. S.), but this prohibition was removed by
the act of March 3, 1875 (18 ibid., 330), which provided the following permanent
organization for the department: One Quartermaster-General (brigadier-general),
four assistant quartermasters-general (colonels) , eight deputy quartermasters-general
(lieutenant-colonels), fourteen quartermasters (majors), and thirty assistant quarter-
masters (captains); no more military storekeepers were to be appointed, and the
office was eventually to cease to exist upon the death or retirement of the store-
keepers then in service. Appointments to the grade of captain from civil life were
authorized, in the discretion of the President, by the act of March 3, 1883 (22 ibid.,
456), but this requirement was repealed by the act of August 6, 1894 (28 ibid., 234),
which restricted such appointments to officers of the next lower grade in the line of
the Army. The corps of quartermaster-sergeants was added by the act of July 5,
1884 (23 ibid., 107), and the corps of army service men was attached to the depart-
ment by the act of June 20, 1890 (26 ibid., 163). At the outbreak of the war with
Spain the Secretary of War was authorized, by the act of July 7, 1898 (30 ibid., 714),
to assign four officers of the department to duty as inspectors, and these officers,
together with the four principal assistants in the office of the Quartermaster-General,
the heads of the divisions in the same office, and the officers in charge of the princi-
pal depots, not exceeding twelve in number, were to have, during such assignment,
the rank and pay one grade higher than that actually held by them in the regular
or volunteer service; such increase in rank, however, was in no case to exceed that
of colonel, and was to continue for a period not exceeding one year after the close of
the war. Two colonels, two lieutenant-colonels, three majors, and twenty captains
were added to the volunteer force of the department for the period of the existing
war. The corps of post quartermaster-sergeants was increased to a total strength of
one hundred and five by the act of July 8, 1898 (ibid., 728) .
By section 16 of the act of February 2, 1901 (31 Stat. L. 751 ), the permanent strength
of the department was fixed at one Quartermaster-General with the rank of brigadier-
general, six assistant quartermasters-general with the rank of colonel, nine deputy
quartermasters-general with the rank of lieutenant-colonel, twenty quartermasters
with the rank of major, and sixty quartermasters with the rank of captain mounted.
A system of details was also established by the operation of which the permanent
commissioned personnel of the department will be gradually replaced, as vacancies
occur, by officers detailed from the line of the Army for duty in the Quartermaster's
Department.
CHAPTER XIX.
THE SUBSISTENCE DEPARTMENT.1
Par. | Par.
758. Organization. 778-784. Sales to officers and enlisted
759-761. Appointments, promotions, de- j men.
tails. ! 785-787. Proceeds of sales.
762. Post commissary-sergeants. ; 788. Supervision of cooking.
763-768. Duties; purchases. 789-791. Commutation of rations.
769-777. The ration; issues of rations.
ORGANIZATION.
758. The Subsistence Department shall consist of one £et?2°?9oin's
Commissary-General of Subsistence with the rank of 17- v- ^/P- 752.
,.-,. i ,-, • , • i Sec. 1140, R. S.
brigadier-general, three assistant commissaries-general
with the rank of colonel, four deputy commissaries-general
with the rank of lieutenant-colonel, nine commissaries with
the rank of major, twenty-seven commissaries with the
rank of captain, mounted, the number of commissary-
sergeants now authorized by law, who shall hereafter be
known as post commissary-sergeants.2 Sec. 17, act of
February 8, 1901 (31 Stat. Z., 750).
1 For note containing the statutory history of the Subsistence Department see end
of chapter.
2 Section 17 of the act of February 2, 1901 (31 Stat. L., 752), contained the require-
ment that "all vacancies in the grades of colonel, lieutenant-colonel, and major, cre-
to appoint officers of volunteers commissioned in the Subsistence Department since
April 21, 1898." See also the act of March 2, 1901, paragraph 578, ante.
Section 2 of the act of July 7, 1898 (30 Stat. L., 715), authorized the Subsistence
Department of the volunteer service to be increased "during the present war, and
not to exceed one year thereafter, eight majors and twelve captains for the discharge
of such subsistence duties as may be assigned to them by the Secretary of War, to be
nominated and, by and with the advice and consent of the Senate, to be appointed
by the President."
The same statute contained the requirement that "during the existence of the
present war, and for not exceeding one year thereafter, every commissary of subsist-
ence, of whatever rank, who shall be assigned to the duty of purchasing and ship-
ping subsistence supplies at important depots, shall have the rank next above that held
by him and not above colonel, but the number so assigned shall only be such as may
be found necessary, not exceeding twelve; also that the two commissaries of subsist-
ence who may be detailed as assistants to the Commissary-General of Subsistence,
shall have the rank of colonel: Provided, That when any such officer is relieved from
said duty, his temporary rank, pay, and emoluments shall cease, and he shall return
to his lineal rank in the Department."
These statutes were repealed by section 11, act of March 2, 1899 (30 Stat. L., 979).
For the volunteer subsistence staff, see the act of March 2, 1899 (30 ibid., 979).
293
294 MILITARY LAWS OF THE UNITED STATES.
PROMOTIONS, DETAILS.
Febm20ti°9oi' s ^9. So long as there remain any officers holding per-
26, v. 31, p. 755. manent appointments in the Subsistence Depart-
ment including those appointed to original
vacancies in the grades of ^captain and first lieutenant
under the provisions of sections sixteen, seventeen, twenty-
one, and twenty -four of this act, they shall be promoted
according to seniority in the several grades, as now pro-
vided bylaw, and nothing herein contained shall be deemed
to apply to vacancies which can be filled by such promo-
tions or to the periods for which the officers so promoted
shall hold their appointments. Sec. 26, act of February 2,
1901, (31 Stat. L., 755).
Details. 760. When any vacancy, except that of the chief of the
department or corps, shall occur, which can not be filled
by promotion as provided in this section, it shall be filled
by detail from the line of the Army, and no more per-
manent appointments shall be made in those departments
or corps. 1 Ibid.
The same. >JQI Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may, from time to time, prescribe.2 Ibid.
POST COMMISSARY-SERGEANTS.
er cant?18 ^2. The Secretary of War is authorized to select from
224V n 18?485C' ^e sergeants of the line of the Army who shall have faith-
sW. ii42,R.s. fully served therein five years, three years of which in the
grade of noncommissioned officers, as many commissary-
sergeants as the service may require, not to exceed one for
each military post or place of deposit of subsistence sup-
plies, whose duty it shall be to receive and preserve the
subsistence supplies at the posts, under the direction of
1 Section 17 of the act of February 2, 1901, contained a provision excepting vacan-
cies caused by that enactment from the operation of this section. Such vacancies are
filled by the President under his constitutional power to appoint, as modified by the
acts of August 6, 1894, (28 Stat. L., 234), February 2, 1901 (section 17), and the act
of March 3, 1901.
2 For regulations respecting details to the staff see the article so entitled in the
chapter relating to the STAFF DEPARTMENTS.
CIVIL EMPLOYEES.
The employment of civilians in the Subsistence Department is regulated by the
annual acts of appropriation. The amount to be expended for such services was
fixed at $105,000 in the acts of March 3, 1883, July 5, 1884, March 3, 1885, and June
30, 1886; at $110, 000 by the acts of February 9, 1887, September 22, 1888, March 2,
1889, June 13, 1890, February 24, 1891, July 16, 1892, and February 27, 1893, and at
$100,000 by the acts of August 6, 1894, February 12, 1895, and March 16, 1896.
MILITARY LAWS OF THE UNITED STATES.
295
the proper officers of the Subsistence Department, and
under such regulations as shall be prescribed by the Secre-
tary of War. The commissary-sergeants hereby authorized
shall be subject to the rules and articles of war. and shall
receive for their services the same pay and allowances as
ordnance-sergeants. 1
DUTIES.2
Par.
763. Purchases and issues.
764. Sales to officers and enlisted men.
765. Exceptional articles for sales.
766. Issues to seamen and marines.
Par.
767. Officers not to trade in articles of
subsistence.
768. Methods of purchase; emergency
purchases.
763. It shall be the duty of the officers of the Subsistence 1818> c
Department, under the direction of the Secretary of War, l^Ma/s 1835;
to purchase and issue to the Arnry such supplies as enter ^Q9' s<1' v- 7> p-
into the composition of the ration.3 Sec. ii4i,K.s.
764. The officers of the Subsistence Department shall aSMe£i°iJtld
procure and keep for sale to officers and enlisted men at mgJedit sales
cost prices, for cash or on credit, such articles as may f rom .^"^IV8!6?' p'
time to time be designated by the inspectors-general of 33s'ec.i 144,11.8.
the Arnty. An account of all sales on credit shall be kept,
and the amounts due for the same shall be. reported monthly
to the Paymaster-General.4
1 For regimental commissary -sergeants of cavalry, see section 2, act of February
2, 1901 (31 Stat. L., 748); for regimental commissary-sergeants of infantry, see sec-
tion 10 of the same enactment. The act of June 30, 1882 (22 Stat. L., 123), author-
izes the detail of one commissary-sergeant to act as assistant to the commissary of
cadets at the Military Academy. By General Orders No. 17, A. G. 0., of February
16, 1900, the number of post commissary-sergeants was fixed at 165; by General
Orders No. 59, A. G. 0., of May 3, 1900, the number was increased to 200. General
Orders No. 1, A. G. 0., of 1900, contains the requirement that "at military posts
and stations and in the field the regimental commissaries and regimental commis-
sary-sergeants of cavalry and infantry regiments will perform the necessary work of
their respective offices in the subsistence department at the stations of the head-
quarters of their regiments, and no commissary-sergeants of the general staff will be
assigned to posts at which there is a regimental headquarters, except under unusual
conditions."
2 The Subsistence Department, under the direction of the Secretary of War, pro-
vides for the distribution and expenditure of funds appropriated for ^ subsisting
enlisted men and for purchasing articles kept for sale to officers and enlisted men.
The Commissary-General furnishes lists of articles authorized to be kept for sale, and
gives instructions for procuring, distributing, issuing, selling, and accounting for all
subsistence supplies. Par. 1351, A. R., 1901.
Subsistence supplies comprise —
(1 ) Subsistence stores, consisting of articles composing the ration and those fur-
nished for sale to officers and enlisted men, also lantern candles for stable use, forage
for beef cattle, and coarse salt for public animals and rebrining.
(2) Subsistence property, consisting of the necessary means for handling, preserv-
ing, issuing, selling, and accounting for these stores. Par. 13*55, ibid.
* For general provisions respecting the procurement of supplies, see the chapter
entitled CONTRACTS AND PURCHASES; see also the chapter entitled THE QUARTER-
MASTER'S DEPARTMENT.
4 See the title, post, Sales of Subsistence Stores.
296 MILITARY LAWS OF THE UNITED STATES.
suppi(2sptional 765< Hereafter exceptional articles of subsistence stores
Fb' 1895 v' f°r officers and enlisted men, which are to be paid for bv
XT */
them, regardless of condition upon arrival at posts, may,
under regulations to be prescribed by the Secretary of
War, be obtained by open purchase without advertising.
Act of February 12, 1895 (28 Stat. L., 658).
S 766- The officers of the Subsistence Department shall,
nseecS.'ii48,R.s. uPon ^ne requisition of the naval or marine officer com-
manding any detachment of seamen or marines under orders
to act on shore, in cooperation with the land troops, and
during the time such detachment is so acting or proceeding
to act, furnish rations to the officers, seamen, and marines
of the same.
trSS^articiS 767' No °fficer belonging to the Subsistence Department,
f°AprSTi4 °i8i8lc' O1* doing the duty of a subsistence officer, shall be con-
427-skarV3 1835' cerned, directly or indirectly, in the purchase or sale of any
78o4-9Mar'3'i8<36'ar^c^e entering into the composition of the ration allowed
497; July S 1866' to tro°Ps ln ^e service of the United States, or of any
P IS' s' 25> v' 14> article designated by the inspectors-general of the Army,
sec. 1150, it. K. anci furnished for sale to officers and enlisted men at cost
prices, or of tobacco furnished for sale to enlisted men,
except on account of the United States; nor shall any such
officer take or apply to his own use any gain or emolument
for negotiating or transacting any business connected with
the duties of his office, other than that which may be
allowed by law.
Purchase^ ^ 768. Hereafter, except in cases of emergency or where
31, p. 905. it is impracticable to secure competition, the purchase of
all supplies for the use of the various departments and
posts of the Army and of the branches of the army service,
shall only be made after advertisement, and shall be pur-
chased where the same can be purchased the cheapest,,
quality and cost of transportation and the interests of the
Government considered; but every open-market emer-
gency purchase made in the manner common among busi-
ness men which exceeds in amount two hundred dollars
shall be reported for approval to the Secretary of War
under such regulations as he may prescribe.1 Act of
March 2, 1901 (31 Stat. Z., 905).
1 The object of this provision is to secure the Government the benefit arising from
competition. It is expected that this benefit will manifest itself in the selection of
the best and most suitable supplies for the least expenditure of public money. Where
the prices for supplies are fixed and uniform it is unusual and impracticable to adver-
tise for proposals. Such cases are not within the meaning of the statute. 3 Dig.
2nd Compt. Dec., par. 1112. Expenditures for water and gas are not expenditures
for supplies within the meaning of this act. Ibid., 1111. So held also as to street-
car tickets. Ibid., 1124.
The officers of the Quartermaster's Department are not bound to award contracts
MILITARY LAWS OF THE UNITED STATES. 297
Par.
769. President to prescribe components.
770. The garrison ration, the field ration,
the emergency ration; meat issues,
proportions; the same, substitu-
tions.
Par.
771, 772. Issues to enlisted men.
773. Issues to matrons and nurses.
774. Issues to Indians.
775. 776. Sugar and coffee.
777. The same, commutation.
769. The President is hereby authorized to prescribe the presceribed ec o1^0-
kinds and quantities of the component articles of the army gjj£ ents of ra~
ration, and to direct the issue of substitutive equivalent 40F|b3J2'p19!^8-
articles in place of any such components whenever, in his
opinion, economy and due regard to the health and com-
fort of the troops may so require.2 Sec. 40, act of Febru-
ary 8, 1901 (31 Stat. L., 758).
to the lowest bidder in every instance, but only to the lowest responsible bidder for
the best and most suitable article, in case the right to reject "any and all bids,"
which the statute reserves, is not exercised. Ibid., 433.
Evidence of compliance with the requirements of this statute should accompany
all contracts filed in the Second Comptroller's Office. Ibid., 426.
Whenever an officer of the Army enters into a contract on behalf of the Govern-
ment for the purchase of quartermaster's or subsistence supplies, under the authority
conferred by this statute, it should be made to appear by the certificate of the officer
that the supplies were required for immediate use. The officer should also certify as
to the time and manner of the advertisement, and that the award was made to the
lowest responsible bidder for the best and most suitable article. Ibid., 428.
Under the act of July 5, 1884 (23 Stat. L., 109), there are four classes of purchases
of arm1
First
War
which must be made " by contract after public notice of not less than ten days;"
third, purchases of the great bulk of army supplies, which must be made under the
general rule prescribed by the Army Regulations, that is, after public notice of not
less than thirty days; and, fourth, unusual and important purchases, where the Sec-
retary of War deems public notice of from thirty to sixty days advisable. Ibid., 1119.
In all cases where purchases of regular or miscellaneous supplies for the Army are
made by the Quartermaster's Department or by the Subsistence Department after
public notice of ten days or more, without executing formal written contracts, the
vouchers therofor must be accompanied by the following evidence, namely: First, a
copy of the public notice for bids; second, a certificate as to the time and manner of
the public notice for bids; third, the accepted bid; fourth, a copy of the letter accept-
ing the bid, and, fifth, a certificate that the award was made to the lowest responsible
bidder for the best and most suitable article. Ibid., p. 1122.
The object of this legislation is to secure for the Government the benefit of compe-
tition in obtaining supplies and to prevent favoritism in making the purchases
thereof. It contemplates one general mode of purchase, namely, by contract, after
advertisement, with "the lowest responsible bidder for the best and most suitable
article," with but a single exception, and that is wrhere an "emergency" exists
requiring the purchase to be otherwise made. Such emergency may arise not only
before the required public notice can be given, but after it has once been given, in
consequence of the failure to receive any bids or proposals; in either case the pur-
chase thereupon would be an emergency purchase, and come within the requirement
of the statute for an immediate report to the Secretary of War for his approval.
This requirement is, I think, designed to extend to all purchases which are not made
agreeably to the general mode above indicated, and hence it applies to the purchase
of parts of machinery, or parts of stoves or ranges, for repairs, or of patented articles,
when the same is (as in cases of emergency, and those only, it may be) made in open
market. XVIII Opin. Att. Gen., 349.
1 For historical note in reference to the army ration see end of chapter.
2 This enactment replaces the requirement of section 1146, Revised Statutes, which
authorized the President to "make such alterations in the component parts of the
ration as a due regard to the health and comfort of the Army and economy may
require."
298
MILITARY LAWS OF THE UNITED STATES.
770. In accordance with the provisions of section 40 of
the act entitled "An act to increase the efficiency of the
permanent military establishment of the United States,"
approved February 2, 1901, which authorizes the Presi-
dent to "prescribe the kinds and quantities of the com-
ponent articles of the army ration, and to direct the issue
of substitutive equivalent articles in place of any such
co'mponents whenever, in his opinion, economy and a due
regard to the health and comfort of the troops may so
require," the following is promulgated for the informa-
tion and guidance of all concerned:
The kinds and quantities of articles composing the army
ration and the substitutive equivalent articles which may
be issued in place of such components shall be as follows:
1. For troops in garrison (garrison ration}.
Standard articles. Substitutive articles.
Kinds.
S:
Quan-
tities.
Meat components ...
Fresh beef
Flour
..ounces..
do....
do
(Fresh mutton a ounces. .
Bacon do 6 ..
20
12
16
14
18
16
18
16
20
1
12f
1H
.4*
20 HCanned meat c do
Pickled fish do....
[Canned fish do
(Soft bread do
18 K Hard bread d .do
Vegetable components e . .
Dried (or evaporated)
fruit components, h
Coffee and sugar compo-
nents.
Seasoning components
Soap and candle compo-
nents.
ICorn meal do —
(Pease do
2gURice do
Potatoes
do
1 Hominy do
f /Potatoes do
(Onions do —
1 [[Potatoes do
1 Canned tomatoes — do —
16< [Potatoes do
Prunes
(Coffee green
do....
do
<Fresh vegetables, not
[ canned/ ounces. .
Desiccated veg e t a b 1 e s <•/
ounces
1 - /Apples do
* \Peaches... do
, , /Roasted and ground .do
* (Tea, black orgreen .ounce. .
31
ISugar
do
r Vinegar
iSalt
iPepper black
gin..
...ounce.,
do
o /Vinegar gill..
** \Cucumber pickles rlo. . .
t
/Soap
do
Is
\Candiesi
do....
Y
a When the cost does not exceed that of fresh beef.
b In Alaska 16 ounces of bacon, or when desired 16 ounces of salt pork or 22 ounces salt beef.
c When impracticable to furnish fresh meat.
d To be ordered issued only when impracticable to use flour or soft bread.
e In Alaska the allowance of fresh vegetables will be 24 ounces instead of 16 ounces.
/When they can be obtained in the vicinity or transported in a wholesome condition from a dis-
tance.
ff When impracticable to furnish fresh vegetables. In Alaska 3f ounces instead of 2g oTinces.
'h Thirty per cent of the issue to be prunes when practicable.
t When illumination is not furnished by the Quartermaster's Department. In Alaska 5sr, ounce
instead of & ounce.
MILITARY LAWS OF THE UNITED STATES.
299
2. For troops in the field in active campaign (field ration).
Standard articles. Substitutive articles.
Kinds.
Quanti-
ties.
Kinds.
Quanti-
ties.
Meat components
Bread components
Vegetable components
Fruit components
Fresh beef a
..ounces.,
do
20
18
H
2§
16
If
IA
3i
A
H
(Fresh mutton a ounces. .
< Canned meat 6 . do
20
16
12
18
16
*
1
22
11
1
[Bacon do —
jSoft bread do
Ifiaking powder c
Beans
Potatoes a
...ounce..
. .ounces. .
do. .
\Hard bread do
(Hopsd ounce. .
•{ Dried or compressed yeast, d
[ ounce..
Rice ounces. .
("Potatoes a do
\Onionsa . do
Desiccated potatoes, .do
(Desiccated potatoes, .do
1 Desiccated onions, .ounce. .
jDesiccated potatoes. ounces.
\Canned tomatoes do
Jam
do..
Coffee and sugar compo-
nents.
Seasoning components
Soap and candle compo-
nents.
(Coffee, roasted an
d ground ,
. ounces.,
do
Tea, black or green . .ounce, j /5
(Sugar
jVinegar
Salt
.Pepper, black . . .
{Soap
gill..
...ounce..
do....
do
fVinegar gill.
*
\Cucumber pickles . . .do
Candles
do....
a When procurable locally.
b When fresh meat can not be procured locally.
c When ovens are not available.
d When ovens are available.
3. For troops when traveling otherwise than by marching or when for short periods they are
separated from cooking facilities (travel ration] . (a]
Standard articles.
Substitutive articles.
Kinds.
Quantities
per 100
rations.
Kinds.
Quantities
per 100
rations.
Soft bread
Pounds.
112£
Hard bread
Pounds.
100
Canned corn beef
75
Corned beef hash
75
Baked beans
25
Canned tomatoes
50
Coffee, roasted and ground
8
Sugar
15
a The issue of liquid coffee to troops when traveling by rail is governed by paragraph 1388 of the
Army Regulations of 1901.
4- For troops traveling on vessels of the United States army transport service.
Food on transports for troops traveling will be prepared
from the articles of subsistence stores which compose the
ration for troops in garrison, varied by the substitution of
other articles of authorized subsistence stores of equal
money value when required. No savings will be allowed
to troops on transports.
5. For use of troops on emergent occasions in active campaign (emergency ration).
An emergency ration, prepared under direction of the
War Department, will be issued to troops on active cam-
paign, but will not be used at any time or place where
300 MILITARY LAWS OF THE UNITED STATES.
regular rations are obtainable. It will be packed in a
conveniently shaped package, and will be carried in the
haversack or saddlebags and accounted for at inspection,
etc., by the soldier.
6. Proportions of meat issues.
Fresh meats will ordinarily be issued seven days in ten,
and salt meats three days in ten. If fish (dried. pickledr
or canned) is issued it will be in substitution of salt meat.
The proportions of the meat issues may be varied at the
discretion of department commanders, not, however, with-
out due consideration being given to the equitable rights
of contractors engaged in furnishing fresh meats to the
troops under their commands.
7. Substitute when the issue of both fresh meat and vegetables is impracticable.
Whenever the issue of both the fresh meat and vegetable
components is impracticable there may be issued in lieu
of them canned fresh-beef-and-vegetable stew, at the rate
of 28^ ounces to the ration.
issues to enlist- 771 Enlisted men shall be entitled to receive one ration
eu men.
Feb. 8, 1815, v. dailv *
3, p. 204; Mar. 2, Ud>1V •
1821, v. 3, p. 615; July 5, 1862, v. 12, p. 508; July 16, 1892, v. 27, p. 178. Sec. 1293, R.S.
strict1orme re~ 772< Hereafter no enlisted man shall be entitled to more
vJ2U7lyP\6781892'than one ration daily.2 Act of July 16, 1892 (27 Stat.
L., 178).
Matrons and 773 Hospital matrons and the nurses employed in post
nurses.
M5r'v621p)i34:or regimental hospitals [and members of the female nurse
9, s.
p8i5t?8Febf corPs] shall be entitled to receive one ration daily.
2i90i,s.i9;v. 31;^ act Of February 2, 1901 (31 Stat. Z., 763).
Sec'.1295,B.S.
TO CIVILIANS.
Issues of rations to civilian employees are governed by the requirements of para-
graph 1398, Army Regulations, 1901, which provides that " issues of rations to civilians
employed with the Army will be made on ration returns signed by the officers in
charge of the employees, when ordered by the commanding officer."
Rations furnished for the use of the Army, being the public property of the United
States, can only be disposed of or issued in accordance with law. Issues to desti-
tute citizens not being so authorized are made on the responsibility of the officer
ordering the same. In this connection, see paragraph 1405, A. R., 1901.
Private persons not connected with the Army are not entitled to be subsisted at
the expense of the United States, either while in quarantine hospitals or otherwise.
5 Comp. Dec., 191.
A civilian employee of the Anny engaged to accompany a scientific expedition at
a salary of $125 pe'r month is not entitled to subsistence, but, like a commissioned
officer, must subsist himself. Herendeen v. U. S., 28 Ct. Cls., 348.
2 Under General Orders No. 73, A. G. O., of 1879, an officer of the Army to whom
a sum of money has been advanced for supplying enlisted men with liquid coffee for
the estimated number of days' travel at the rate of 21 cents per day each while trav-
MILITARY LAWS OF THE UNITED STATES. 301
774. The President is authorized to cause such rations dian£es to In"
as he deems proper, and as can be spared from the army g -}|?n£ |°'p l®j*>.
provisions without injury to the service, to be issued under :JTu°8e p2^g74> s> 3'
such regulations as he shall think fit to establish, to ••*•*!****
Indians who ma}7 visit the military posts or agencies of
the United States on the frontiers, or in their respective
nations, and a special account of these issues shall be kept
and rendered.1
775. The ration of sugar and cofi'ee where issued in kind, f Jur^[0ann ^Oc^
shall, when the convenience of the service permits, be is-isjSy^ei|&\,
sued weekly. 162> s* 17> v- 5> p- 258- Sec> n*8' B* s
776. The Secretary of War may commute the ration of coffee and
* • t sugar may be
coffee and sugar for the extract of coffee combined with co]^l^iuje^862
milk and sugar, if he shall believe such commutation to be gs- 8- 10' v- 12' P-
conducive to the health and comfort of the Army, and not sec. 1147, B. s.
to be more expensive to the Government than the present
ration; provided the same shall be acceptable to the men.
777. For each ration of sugar and coffee not issued, nor
commuted for the extract of coffee combined with milk 17^
and sugar, enlisted men shall be paid in money.
SALES OF SUBSISTENCE STORES.
Par.
782. Credit sales to officers.
783. The same, enlisted men.
784. The same, tobacco.
Par.
778. Stores for sales.
779. Sales of rations.
780. Sales of tobacco.
781. Sales to be made at cost price.
778. The officers of the Subsistence Department shall
procure and keep for sale to officers and enlisted men at5',
cost prices for cash or on credit, such articles as may from
time to time be designated by the inspectors-general of
the Army. An account of sales on credit shall be kept,
and the amounts due for the same shall be reported monthly
to the Paymaster-General.
779. Commissioned officers of the Army, serving in the
field, may purchase rations for their own use, from any fy s- 5' v- 13' P-
commissary of subsistence, on credit, at cost prices; and sec. 1145, B. s.
eling, is authorized to turn over to the company commanders for the benefit of the
company funds any balance of such sum remaining unexpended at the end of the
travel. 6 Comp. Dec., 369.
1 Small quantities of food (articles of the ration) may, on the order of the com-
manding officer, be issued to Indians visiting a military post. The order will state
the number of Indians and their tribe, number of days for which the issues are
made, quantities, and necessity for the issues. Indians will not be continuously sub-
sisted in this manner except by authority of the Secretary of War. A copy of the
order directing the issue will accompany the abstract of issues. Par. 1266, A. R.,
1895.
302 MILITARY LAWS OF THE UNITED STATES.
the amounts due for such purchases shall be reported
monthly to the Paymaster-General.1
ba^o1.68 °f to~ 780. Tobacco shall be furnished to the enlisted men by
sifs^e, V8jf,' p! the commissaries of subsistence, at cost prices, exclusive
4s7ec.ii49,B.s. °f *ne cos^ °f transportation, in such quantities as they
may require, not exceeding sixteen ounces per month.1
male atcost. be 781. Hereafter all sales of subsistence supplies to officer.'
23fp!yio8.1884> v' and enlisted men shall be made at cost price only; and the
cost price of each article shall be understood, in all cases
of such sales, to be the invoice price of the last lot of that
article received by the officer making the sale prior to the
first day of the month in which the sale is made.1 Act of
July 5, 1884 (®3 Stat. Z., 108).
raDteioUnsi0pSuf?- 782> The am°unt due from any officer for rations pur-
cb3aMar 1865 c cnased on credit, or for any article designated by the
' inspectors -general of the Army and purchased on credit
fr°m commissaries of subsistence, shall be deducted from
|'ec.i299 B.S ^e Pavment made to such officer next after such purchase
shall have been reported to the Paymaster-General.
. 5, . is, p.
Pu*rchafedticles 7^* ^e amount due from any enlisted man for articles
2998sJ25yVi8i?'p Designated by the inspectors-general of the Army, and
33|'ec 1300 B s SO^ ^° kim on credit D3f commissaries of subsistence, shall
be deducted from the payment made to him next after such
sale shall have been reported to the Paymaster-General.
pu^chasedbacc° 7^f ^he amount due from any enlisted man for tobacco
si3 ^r'V18^' c> s°ld to him at cost prices by the United States shall be
81, S. o, V. lo, p. J
49Sec.isoi, B.S. deducted from his pay in the manner provided for the set-
tlement of clothing accounts.
PROCEEDS OF SALES.
safes °acvlf la bi°e 785> All proceeds of sales of old material, condemned
chases.ew pur"stores, supplies, or other public property of any kind, ex-
Sec.36i8, B.S. cept the proceeds of the sale or leasing of marine hospitals,
or of the sales of revenue cutters, or of the sales of com-
missary stores to the officers and enlisted men of the Army,
or of materials, stores, or supplies sold to officers and
soldiers of the Army, or of the sales of condemned navy
clothing, or of sales of materials, stores, or supplies to any
1 The acts of June 23, 1879, and May 4, 1880, contained the requirement that 10
per cent of the cost price should be added to the cost of all stores (except tobacco)
sold to officers and enlisted men, to cover wastage, transportation, and other incidental
charges (21 Stat. L., 32, 111). This provision was repealed by the act of July 5,
1884, above cited. To a civilian employed with the Army at a remote place, where
food can not otherwise be procured, stores will be sold for cash, in limited quantities,
for his own use, at invoice or contract prices with 10 per cent added. Par. 1284,
A. R., 1895. The amounts due for such sales to be deducted from the next payment
to the officer or enlisted man. See paragraphs 782, 783, and 784, post.
For statutory regulation of the purchase of exceptional articles of subsistence see
the act of February 12, 1895 (28 Stat. L., 658). Paragraph 765, ante.
MILITARY LAWS OF THE UNITED STATES. 303
exploring or surveying expedition authorized by law, shall
be deposited and covered into the Treasury as miscellaneous
receipts, on account of proceeds of Government property,
and shall not be withdrawn or applied, except in conse-
quence of an appropriation made b}^ law.
786. All moneys received from the leasing or sale of ceprrta in6 sales
marine hospitals, or the sale of revenue cutters, or
the sale of commissary stores to the officers and enlisted 48^a[;
men of the Army [or from the sale of materials, stores, pr'^f^jj
supplies sold to officers and soldiers of the Army], or from^0;2
sales of condemned clothing of the Navy, or from sales of f^ci
materials, stores, or supplies to any exploring or survey- Js^'c
ing expedition authorized by law, shall respectively revert Pg7|3£
to that appropriation out of which they were originally Pg75388;
expended, and shall be applied to the purposes for which Pg741°: Feb. 27,
they are appropriated by law. Psec?3692, B. s.
787. So much of the appropriation for subsistence of foArppJXistenSI
the Army as may be necessary maybe applied to the pur-
chase of subsistence stores for sale to officers for the use officeSrs°etcale to
of themselves and their families, and to commanders of ^^f ^ 1876> v>
companies or other organizations, for the use of the enlisted
men of their companies or organizations and the proceeds
of all sales of subsistence supplies shall hereafter be
exempt from being covered into the Treasury and shall be
immediately available for the purchase of fresh supplies.1
Act of March 3, 1875 (18 Stat. Z., 410).
788. The line officers of the Army shall superintend the enScepofricwk£g"
cooking done for the enlisted men. 2 sKi&M&l: 78's-8'v'12'p-744-
1 Under the act of March 3, 1875 (18 Stat. L., 410), the proceeds of all sales of sub-
sistence supplies are exempt from being covered into the Treasury, and are immedi-
ately available for the purchase of fresh supplies. 3 Dig. 2nd Coinp. Dec. , par. 1259.
Under the act of March 3, 1875 (18 Stat L., 410), the proceeds of all sales of sub-
sistence supplies, being exempt from being covered into the Treasury, revert to the
appropriation "Subsistence of the Army," out of which they were originally
expended, and are applicable to the purpose for which they are appropriated by law,
namely, the purchase of fresh supplies only during the fiscal year for which the
appropriation to which they^ revert is available, for which purpose they are immedi-
ately available without the intervention of a repay warrant. Ibid.
The subsistence supplies contemplated by the provision of the act of March 3, 1875
(18 Stat. L., 410), declaring the proceeds of all sales of such supplies immediately
available for the purchase of fresh supplies, comprise not only the supplies denomi-
nated "subsistence stores," but also the necessary means for handling, preserving,
issuing, selling, and accounting for these supplies, as tools, scales, measures, utensils,
stationery, safes, office furniture, etc. Ibid., 1336.
2 Section 1233, Eevised Statutes, which required cooks to be detailed, in turn, from
the privates of each company was repealed by the act of June 29, 1879 (20 Stat. L.,
ch. 24, p. 276). See G. 0. 94, A. G. O., 1898. The act of July 7, 1898 (30 Stat. L.,
721), authorized the enlistment of one cook in each company composing the military
establishment. Such cook was to have the rank and receive the pay of a corporal.
This statute was replaced by the act of March 2, 1899 (30 Stat. L., 977) , which author-
ized two cooks to be enlisted in each troop of cavalry, battery of artillery, and com-
pany of infantry of the Regular and Volunteer establishments. By section 9 of the
act of March 2, 1899, the cooks so enlisted were to have the pay of sergeants of
infantry.
304 MILITARY LAWS OF THE UNITED STATES
COMMUTATION OF RATIONS.
coffee and 789, For each ration of sugar and coffee not issued, nor
ujuiy 5, isss, s. commuted for the extract of coffee combined with milk
17, v. 5, p. 258; _4 , 1 . __ , . _ ,
8ee.i294,R.s. and sugar, enlisted men shall be paid in money.
1 Commutation in the military or naval service is money paid in substitution of
something to which an officer, soldier, or sailor is entitled. Commutation, being
regulated oy statutes and regulations, can not be allowed by inferior authority. The
principle which governs the commutation of rations in lieu of subsistence is that
commutation will not be allowed where subsistence in kind is provided by the Gov-
ernment. Jaekle v. U. &, 28 Ct. Cls., 133.
Authority to establish the fates of the allowance for commutation of rations has
not been given by statute, but these rates have been left to be fixed by Army Regu-
lations. But these amounts are recognized and sanctioned in the provisions of the
Army appropriation acts relating to the Subsistence Department. Dig. Opin. J. A.
G,, par. 1957.
Paragraph 1273, Army Regulations, 1895, in directing that commutation in lieu of
rations shall not be allowed to soldiers where subsistence in kind is provided by the
Government, excepts cases where the same is specially authorized by the Secretary
of War. Held, that this part of the Regulations was substantially superseded by the
statutory provision of the existing army appropriation act of February 27, 1893,
which enumerates several specific classes of enlisted men as persons to whom the
payment may be made without reserving to the Secretary of War any authority to
extend the privilege. Par. 1958, ibid.
The allowance for commutation of rations, made payable by the army appropria-
tion act of February 27, 1893, "to enlisted men traveling on detached duty, when it
is impracticable to carry rations," etc., held to be restricted to the period covered by
the travel, and not to be payable to a soldier for commutation of rations consumed
at the destination where he was placed by his orders on detached duty, viz, for four
days' board at a hotel at the terminus of his travel. Par. 1959, ibid.
A claim for .commutation of rations on furlough can not be allowed without the
production of the furlough issued, or other satisfactory evidence that payment has
not been made. The burden of proof rests upon the claimant to establish the valid-
ity of his claim by something more than his unsupported statements. 1 Comp.
Dec., 513.
Commutation of rations may be allowed at the following rates, under the condi-
tions mentioned, viz:
Conditions.
Rate.
per day
each.
1. To a soldier at the conclusion of his furlough, provided that on or before the last day
thereof he has reported at his proper station or has been discharged
2. To sergeants of the post noncommissioned staff (and soldiers acting as such) on duty
at forts and stations where there are no other troops
3. To a soldier on detached duty, stationed in a city or town where subsistence is not fur-
nished by the Government .
4. To a soldier traveling under orders from a place or station at which his rations have
5. To enlisted men traveling under orders (when the journey can not be performed in
it is impracticable to carry rations of any kind), as follows:
been regularly commuted,
'o enlisted men traveling
twenty-four hours and it
To an enlisted man traveling alone
To two enlisted men traveling as a detatchment or traveling as a guard to ati in-
sane patient or military prisoner, each
To an insane patient or military prisoner traveling under guard of one or two en-
listed men, to be paid, on the order of the commanding officer, in advance to,
and to be receipted for by, the person to whose charge the patient or military
prisoner is committed by the order
SO. 25
.40
.75
1.50
1.50
1.50
1.50
Par. 1272, A. R., 1895.
Commutation of rations will not be allowed to enlisted men serving where subsistence is furnished
by the Government; or traveling under orders when they can carry and cook their rations, or can
carry cooked or travel rations; or traveling under orders by steamboat or steamship where the pas-
sage rates include meals; or failing to report at their proper stations on or before the last day of
furlough unless discharged; or recruiting parties at their stations; nor to civil employees. Par. 1273,
ibid.
A soldier who has been granted a furlough to expire upon the arrival of his regi-
ment in the United States, is entitled to commutation of rations until he receives
notice of its arrival and for a time thereafter sufficient to enable him to join it,
5 Comp. Dec., 941.
MILITAKY LAWS OF THE UNITED STATES. 305
790. Every noncommissioned officer and private of the
Regular Army, and every officer, noncommissioned officer,
and private of any militia or volunteer corps in the service sec.i288,B.s.
of the United States who is captured by the enemy, shall
be entitled to receive during his captivity, notwithstanding
the expiration of his term of service, the same pay, sub-
sistence 1 and allowance to which he may be entitled while
in the actual service of the United States; but this pro-
vision shall not be construed to entitle any prisoner of war
of such militia corps to any pay or compensation after the
date of his parole, except the traveling expenses allowed
by law.
791. For the payment of the regulation allowances for ofcr^™tation
commutation of rations in lieu of rations: To enlisted men 31^ar<^' 1901) v-
on furlough; to ordnance-sergeants on duty at ungarri-
soned posts; to enlisted men and male and female nurses
stationed at places where rations in kind can not be eco-
nomically issued; to enlisted men traveling on detached
duty when it is impracticable to carry rations of any kind;
to enlisted men selected to contest for places or prizes in
department and army rifle competitions while traveling to
and from places of contests; and to male and female nurses
on leaves of absence, to be expended under the direction
of the Secretary of War. Act of March 2, 1901 (31 Stat.
Z., 904).
HISTORICAL NOTE. — The office of Commissary-General of Supplies and Purchases
was created during the war of the Revolution by a resolution of Congress dated July
19, 1775, and on the recommendation of General Washington, Jonathan Trumbull,
of Connecticut, was appointed to the office. The methods of supplying the Army
with provisions having proved inadequate, however, the matter was investigated by
a committee of the Congress, and the department was reorganized by a resolution of
Congress dated June 10, 1777. Under the new arrangement the duties of purchase
and distribution were separated and intrusted to independent bureaus under the
Commissary-General of Purchases and the Commissary-General of Issues. The duties
of the Commissary-General of Issues were defined in the resolution of Congress of
June 10, 1777; those of the Commissary-General of Purchases were made the subject
of occasional modifications, and will be found in the resolutions of June 10, 1777, and
November 30, 1780. By the resolution of July 10, 1781, the departments of pur-
chases and issues were merged in the office of Superintendent of Finance, under
whose direction a system of supplying the Army by contracts was established. By
a subsequent resolution, dated May 28, 1784, the office of Superintendent of Finance
was abolished, its duties being merged in the Board of the Treasury created by that
enactment. Under this arrangement, which continued in force after the organiza-
tion of the Government under the Constitution, all subsistence supplies for the Army
1 Under section 1288, Revised Statutes, which provides that any soldier who is
captured by the enemy shall be entitled to receive, during his captivity, "the same
pay, subsistence, and allowance to which he may be entitled while in the actual
service," a soldier so captured is entitled to commutation of rations during his cap-
tivity at the rate provided in General Orders No. 37, A. G. O., of 1865, viz, 25 cents
per day from the appropriation "Subsistence of the Army." 6 Comp. Dec., 846.
22924—08 - 20
306 MILITARY LAWS OF THE UNITED STATES.
were purchased by the Treasury Department under contracts entered into under the
direction of the Secretary of the Treasury (sec. 5, act of May 8, 1792, 1 Stat. L., 280;
act of February 23, 1795, ibid., 419). By the acts of July 16, 1798 (ibid., .610), and
March 3, 1809 (2 ibid., 535), the present methods of purchasing supplies for the Army,
and accounting for the same, were established.1 The contract system continued to
exist until the reorganization of the staff, which was accomplished by the act of
April 4, 1818 (3 ibid., 426), when it was replaced by the present Subsistence
Department.
At the reduction of 1802 a system of military agencies was established in connection
with the procurement and distribution of subsistence stores and supplies. Three
military agents and such number of assistant military agents, not exceeding one to
each military post, as the service might require, were authorized by section 3 of the
act of March 16, 1802 (2 Stat. L., 132); the assistants were to be selected from the
line of the Army and were to receive additional monthly compensation. By section
4 of the act of March 28, 1812 (ibid., 696), the military agency system was abolished,
and the duty of procuring military supplies was vested in the Commissary-General of
Purchases and in the Quartermaster's Department thereby created. By section 2 of
the act of April 4, 1818 (3 ibid., 426), the office of Commissary-General was created
with the rank and pay of a colonel of ordnance, and provision was made for as many
assistant commissaries as the service might require; these officers were to be detailed
from the line, and were to receive twenty dollers per month additional pay. The
duties of the department thus created were restricted to the purchase and issue of
subsistence stores and supplies; and the system, which was experimental in charac-
ter, was to continue for five years from the passage of the act.
At the general reduction of 1821 2 the organization of the department was somewhat
modified, the office of Commissary-General of Subsistence being created and provi-
sion made for as many assistant commissaries as the service might require, not
exceeding fifty, who were to be taken from subalterns of the line, and were to
receive, in addition to their monthly pay, certain sums, to be regulated by the Sec-
retary of War, and to be not less than ten dollars nor more than twenty dollars in
amount; they wer3 to perform duty in both the Subsistence and Quartermaster's
Departments, as might be required under the orders of the Secretary of War. By
the act of June 23, 1823 (3 ibid., 721), the existing arrangement of the department
was continued for five years. Two assistant commissaries with the rank of major
were added to the department by the act of March 3, 1829 (4 ibid., 360), and the
system was to be continued for a third period of five years. By section 5 of the act
of March 3, 1835 (ibid., 780), the Subsistence Department, which had hitherto been
in an experimental stage, was placed upon a permanent basis. By section 11 of the
act of July 5, 1838 (5 ibid., 256), there were added to the department one assistant
commissary-general of subsistence with the rank and pay of a lieutenant-colonel of
dragoons, one commissary of subsistence with the rank and pay of quartermaster,
and three commissaries with the rank and pay of assistant quartermasters.
No further change in the composition or duties of the department was made until the
outbreak of the war with Mexico, when, by section 5 of the act of June 18, 1846 (9 ibid.,
17) , the President was authorized to appoint as many^additional officers, not exceed-
ing one commissary (major) to each brigade, and one assistant commissary (captain)
to each regiment, as he might deem necessary; these appointments, however, were
not to extend beyond the period of the existing war. By the act of September 26,
1850 (9 ibid., 469), four commissaries of subsistence (captains) were added to the
existing establishment, and these appointments were to be made from the line of the
Army.
At the commencement of the war of the rebellion a commissary of subsistence
(captain) was allowed for each brigade of the volunteer forces authorized to be raised
by the act of July 22, 1861 (12 Stat. L. 269), and four commissaries of subsistence
(majors) and eight commissaries of subsistence with the rank of captain were added
to the permanent establishment by the act of August 3, 1861 (ibid., 287) ; by section
10 of the act of July 17, 1862 (ibid., 599), a commissary of subsistence for each army
corps, with the rank of lieutenant-colonel, was also authorized. By the act of Feb-
ruary 9, 1863 (ibid., 648), the department was reorganized, the rank of brigadier-gen-
eral being conferred upon the Commissary-General of Subsistence, who was to be
selected from the department, and one colonel, one lieutenant-colonel, and two
majors were added. These offices were to be filled by regular promotion.
*For a more extended discussion of the methods of procuring supplies during the
period between the the organization of the Government under the Constitution and
the general reorganization of the staff in 1821, see the note in connection with the
Quartermaster's Department, page 290, ante.
2 Act of March 2, 1821 (3 Stat. L., 615).
MILITARY LAWS OF THE UNITED STATES. 307
The peace establishment of the department was fixed by section 16 of the act of
July 28, 1866 (14 ibid., 335), as follows: One Commissary-General of Subsistence
(brigadier-general), two assistant commissaries-general of subsistence (colonels), two
deputy commissaries-general of subsistence (lieutenant-colonels), eight commissaries
(majors), and sixteen commissaries of subsistence (captains). The repealing clause
of the act of July 28, 1866, having been regarded as including within its scope the
provision for additional compensation to officers detailed from the line, which had
been authorized by section 3 of the act of March 3, 1821 (3 ibid., 615), it was pro-
vided by section 24 of the act of July 15, 1870 (16 ibid., 320) , that lieutenants of the
line detailed to perform the duties of acting commissaries of subsistence should receive
$100 additional pay per annum. Section 6 of the act of March 3, 1869 (15 ibid., 318) ,
contained the requirement that there should be no more promotions or appointments
in the staff of the Army until otherwise directed by law, but this restriction was
removed, as to the Subsistence Department, by section 3 of the act of June 23, 1874,
which reorganized the department and fixed its commissioned strength at one briga-
dier-general, two colonels, three lieutenant-colonels, eight majors, and twelve cap-
tains. By the act of February 12, 1895 (28 ibid., 656), the number of captains was
reduced to eight. The requirement of the act of March 3, 1883 ( 22 ibid. , 457 ) , author-
izing captains in this department to be appointed from civil life was repealed by the
act of August 6, 1894 (28 ibid., 234) , and appointments to the lowest grade are now
required to be made from the line of the Army. The act of June 30, 1882 (22 ibid.,
118), and subsequent acts of appropriation have made provision for the payment of
$100 additional pay to officers detailed from the line to perform the duties of acting
commissaries of subsistence. A corps of post commissary-sergeants was added to the
department by the act of March 3, 1873 (17 ibid., 485; section 1142, Revised Statutes).
They were to be appointed by the Secretary of War in such number as the service
might require, but were not to exceed one for each military post.
By section 2 of the act of July 7, 1898 (30 ibid., 715), there were added to the
strength of the department during the war with Spain eight majors and twelve cap-
tains of volunteers, and the two assistants to the Commissary-General of Subsistence
and the officers in charge of important depots were given one grade of rank and pay
in addition to that actually held by them; such increase, however, was not to exceed
the rank of colonel in any case, and was to continue for a period not exceeding one
year after the close of the existing war.
By section 17 of the act of February 2, 1901 (31 Stat. L., 752), the permanent
strength of the department was fixed at one Commissary-General with the rank of
brigadier-general, three assistant commissaries-general with the rank of colonel, four
deputy commissaries-general with the rank of lieutenant-colonel, nine commissaries
with the rank of major, and twenty-seven commissaries with the rank of captain
mounted; the existing force of commissary-sergeants was recognized and continued
in service and were thereafter to be designated as post commissary-sergeants. A sys-
tem of details was also established by the operation of which the permanent com-
missioned personnel of the department will be gradually replaced, as vacancies
occur, by officers detailed from the line of the Army for duty in the Subsistence
Department.
The army ration. — The army ration, as established by the act of April 30, 1790 (1
Stat. L., 121); section 8, act of March 3, 1795 (ibid., 434); and section 13, act of
May 30, 1796 (ibid., 484) ; consisted of 1 pound of fresh or salt beef, or three-quarters
of a pound of pork or bacon; 1 pound of flour, one-half a gill of spirits, and to each
100 rations 1 quart of salt, 2 quarts of vinegar, 2 pounds of soap, and 1 pound of
candles. By section 3 of the act of June 7, 1794 (ibid., 242); section 6, act of Janu-
ary 2, 1795 (ibid., 400), and section 11, actof May 30, 1796 (ibid., 484), sundry addi-
tions were made to meat, bread, and seasoning components of the ration in the case
of troops employed on frontier service. The ration was increased by section 6 of the
act of July 16, 1798 (ibid., 605), so as to consist of l\ pounds of fresh or salt beef, or
three-quarters of a pound of pork or bacon; 1 pound and 2 ounces of flour; 1 gill
of spirits; and to each 100 rations 2 quarts of salt, 2 quarts of vinegar, 4 pounds of
soap, and 1£ pounds of candles; and the ration, as thus constituted, was made per-
manent by section 6 of the act of March 16, 1802 (2 ibid., 134). By section 22 of
the act of March 3, 1799 (1 ibid., 749), the regular spirit ration was reduced to one-
half gill, and commanding officers were authorized to make extra issues of spirits, at
the rate of one-half gill per ration, "in cases of fatigue service or other extraordinary
occasions." l The spirit ration was replaced by coffee and sugar at the rate of 6 and
12 pounds, respectively, per hundred rations, by section 17 of the act of July 5, 1838
(5 ibid., 256), and the ration of coffee and sugar was increased to 10 and 15 pounds,
respectively, by section 4 of the act of June 21, 1860 (12 ibid., 68) ; by section 10, act
of July 5, 1862 (ibid., 510), the extract of coffee was authorized to be issued in lieu
308 MILITARY LAWS OF THE UNITED STATES.
of the coffee and sugar ration.1 A vegetable component, consisting of 15 pounds of
beans or peas, or 10 pounds of rice or hominy, was added to the ration by Execu-
tive order, under the authority conferred by section 8 of the act of April 14, 1818
(3 ibid., 426), paragraph — , Army Regulations of 1847). An increase in the com-
ponents of the ration to the following extent was authorized by section 13 of the act
of August 3, 1861 (12 ibid., 289); the ration of bread or flour was increased to 22
ounces, and an alternate issue of 1 pound of hard bread authorized, and a vegetable
ration, to consist of 1 pound of potatoes, was required to be issued ' ' at least three times
per week, if practicable." This increase was to terminate at the close of the war, when
the ration was to be reduced to the articles and quantities as authorized by law or regula-
tion on July 1, 1861. Pepper was added as one of the seasoning components, at the rate
of 4 ounces to the hundred rations, by section 11, act of March 3, 1863 (12 ibid., 744),
and section 2 of the act of June 20, 1864 (13 ibid., 144), contained the requirement
that the ration should thereafter be the same as provided by law and regulation on
the 1st day of July, 1861, with the addition of the pepper ration authorized by the
act of March 3, 1863; the components of beans (or peas), or rice (or hominy), at the
rate of 15 and 10 pounds, respectively, to the hundred rations, having been added
by Executive regulation, were included in the operation of the act of July 1, 1864,
and became part of the authorized ration. By section 5 of the act of June 16, 1890
(26 ibid., 158), 1 pound of vegetables was added to the ration, "the proportion to be
fixed by the Secretary of War."
1 Issues of spirits, as a component part of the ration, were discontinued by Execu-
tive order in 1832 (General Orders No. 100, A. G. 0., 1832), ana an issue 'of coffee
and sugar was substituted therefor at the rate of 4 pounds of coffee and 8 pounds of
sugar to the hundred rations.
By the act of March 2, 1819 (3 Stat. L., 488), an "extra gill of whisky or spirits"
was allowed to enlisted men engaged in the construction of fortifications or the exe-
cution of surveys, but by the act of May 19, 1846 (9 Stat. L., 14), this ration was
allowed to be commuted in money. Upon the discontinuance of the spirit ration in
1838, section 22 of the act of March 3, 1799 (1 Stat. L., 754) , became operative, which
authorized the issue of spirits "in case of fatigue service or other extra occasions."
This placed the spirit ration upon the basis of an extra issue; such issues, therefore,
being discretionary with the Executive. They were discontinued by General Orders
No. 120, War Department, of 1865.
CHAPTER XX.
THE PAY DEPARTMENT.
Par.
792-794. Organization.
795-797. Promotions, transfers, details.
798. Renewal of bonds.
.799-801. Duties.
802, 803. Payments to troops.
804. Command.
805, 806. Clerks to paymasters.
807-825. Pay of commissioned officers.
826-829. Pay during absence.
Par.
830, 835. Commutation of quarters.
836. Payments to officers.
837-849. Travel expenses, mileage.
850, 851. Travel pay on discharge.
852-856. Stoppages.
857-861 . Payments to matrons and nurses.
862-888. Payments to enlisted men.
889-898. Stoppages and deductions.
Additional
paymasters.
ORGANIZATION.
792. The Pay Department shall consist of one Paymaster- composition.
General with the rank of brigadier-general, three assist- 21, ^1,^.754. ' *
ant pa}Tmasters-general with the rank of colonel, four
deputy-paymasters-general with the rank of lieutenant-
colonel, twenty paymasters with the rank of major, and
twenty -five paymasters with the rank of captain mounted.2
Sec. 81, act of February 2, 1901 (31 Stat. Z., 754).
793. When volunteers or militia are called into the serv-
ice of the United States, and the officers of the Pay mas- ^^l; y8?,'p'
ter's Department are not deemed by the President sufficient 25|^c 1184^ Bi s>
for the punctual payment of the troops, he may appoint, by
and with the advice and consent of the Senate, and add
to said corps as many paymasters, to be called additional
paymasters with the rank of major, not exceeding one for
1 For a note containing the statutory history of the Pay Department, see end of
chapter.
2 Section 21 of the act of February 2, 1901 (31 Stat. L., 754), contains the requirement
that ' ' all vacancies in the grade of colonel and lieutenant-colonel created or caused
by this section shall be filled by promotion according to seniority, as now prescribed
by law, and no more appointments to the grade of major and paymaster shall be
made until the number of majors and paymasters is reduced below twenty: And pro-
vided, That persons who have served in the Volunteer Army since April twenty-first,
eighteen hundred and ninety-eight, as additional paymasters may be appointed to
positions in the grade of captain created by this section. So long as there remain
surplus majors an equal number of vacancies shall be held in the grade of captain, so
that the total number of paymasters authorized by ^his section shall not be exceeded
at any time." For requirements of law in respect to appointments in this depart-
ment as it existed prior to the approval of the act of February 2, 1901, see section 7
of the act of March 2, 1899 (30 Stat. L., 979). For a statutory extension of the field
of selection, as indicated in section 21 of the act of February 2, 1901, see the" act of
March 2, 1901, par. 578, ante.
309
310 MILITARY LAWS OF THE UNITED STATES.
every two regiments of volunteers or militia, as he may
deem necessary.
temporary10 ** 794* Additional paymasters shall be retained in service
i62s 25' l\Sb' c' onty so ^on£ as ^ey may ke re(luire(l f°r the payment of
25sL ii85 B'S v°lunteers and militia, as provided herein.
PROMOTIONS AND TRANSFERS.
Febii s 795> ^° *on£ as ^ere remain any officers holding per-
26, v. si' p. 755. manent appointments in the * Pay Department
including those appointed to original vacancies
in the grades of captain and first lieutenant under the pro-
visions of sections sixteen, seventeen, twenty-one, and
twenty-four of this act, they shall be promoted according
to seniority in the several grades, as now provided by
law,1 and nothing herein contained shall be deemed to
apply to vacancies which can be filled by such promotions,
or to the periods for which the officers so promoted shall
hold their appointments. Sec. #£, act of February 2-, 1901
(31 Stat. Z., 755).
retails. 796 When any vacancy, except that of the chief of the
department or corps, shall occur, which can not be filled
by promotion as provided in this section, it shall be filled
by detail from the line of the Army, and no more perma-
nent appointments shall be made in these departments or
corps. Ibid.
The ame. 797. Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may, from time to time, prescribe.2 Ibid.
bondsnofwpay* 798> ^ disbursing officers of the Pay Department shall
m™terso T renew their bonds, or furnish additional security, at loust
jyLftr. &) J.o4.y, c.
wfal; TOWN'S once m f°ur years, and as much oftener as the President
>*'<*. I I J _ , li..>.
may direct.3
DUTIES.
9 le.vp!
''l86, E.
799. The Paymaster-General shall perform the duties of
his office under the direction of the President.
Sec.ll86,'E.S.
ut?UpfymL&- 80°. The deputy paymasters-general shall, in addition to
geMara3 is-<7 c Paym£ troops, superintend the payment of armies in the
61, SS.lV22,~V.tHiAld
p. 185; July 19| D 1Q*
1848, c. 104, s. 3, v- 9, p. 247; Mar. 2, 1849, c. 80, v.9,p.350;
July 28, 1866, c.299, s.18, v. 14, p. 335. Scc.1187, B.S.
JFor statutory regulations respecting examinations for promotion, see the title
Examinations for Promotion, in the chapter entitled THE STAFF DEPARTMENTS.
2 For statutory regulations respecting details to the staff, see the title Defaih to the
Staff in. the chapter entitled THE STAFF DEPARTMENTS.
3 For general provisions respecting bonds of disbursing officers, see the chapters
entitled THE TREASURY DEPARTMENT and THE STAFF DEPARTMENTS.
MILITARY LAWS OF THE UNITED STATES. 311
801. The paymasters and additional paymasters shall pay ^^ of P*?*
the regular troops, and shall pay all other troops in theg^^isie^c.
service of the United States, when required to do so byg1}^ *832; <;'
order of the President. 1 ^ Ju* 5> 1838' c- 162' s- 25« v- 5- *• 259' sW:i1'88' W
PAYMENTS TO TROOPS.
802. The Army shall be paid in such manner, that the tro0plments to
arrears shall at no time exceed two months, unless circum- 9t^fg| ^pJi'ss.
stances shall render further arrears unavoidable.2 Sec.ii89,B.s.
803. The Secretary of War is also authorized to arrange lfa^m^2fe£
for the payment of the enlisted men serving at posts or ch-jyb'.$?im, v.
places where no paymaster is on duty by check or by cur- 27) p> 175<
rency , to be sent to them by mail or express, at the expense
and risk of the United States.3 Act of February 27, 1893
(27 Stat. L., 175}.
804. Officers of the Pay Department shall not be entitled, m^|ht of com-
in virtue of their rank, to command in the line or in other 61Msarif' ™*g' £
staff corps.4 18L.ii88,R.s.
1 Paymasters of the Army are the financial agents of the Government, and their
disbursements, represented by vouchers, are examined and scrutinized by the Comp-
troller, whose duty it is finally to determine whether or not any particular disburse-
ment shall be credited to the officer. In charging an officer, or refusing him credit
for erroneous disbursements, the question of proper care invariably enters into con-
sideration in arriving at a decision. The right to determine that question is a most
essential feature of the functions of the Comptroller. 3 Dig. 2d Compt. Dec., par. 8.
2 Troops will be paid every month unless circumstances prevent, in which case the
paymaster charged with the payment will immediately report the facts through his
chief paymaster to the Paymaster-General. Par. 1502, A. R., 1901.
3 Payments will be made as soon after the close of each month as practicable:
(1) By paymasters in person; or
(2) By check to be sent by registered mail or express, or currency shipped by
express.
The troops at posts where paymasters are stationed and others in their immediate
vicinity, to be designated in instructions issued from the Adjutant-General's Office,
will be paid by paymasters in person.
For posts at which payments are not required to be made in person, the paymaster
will transmit the pay due in one or more of the following ways:
(1) By individual check, payable to the order of each man for the exact amount
due.
(2) By enclosing in a separate sealed envelope the exact amount in currency due
each soldier, with his name and the amount inclosed marked thereon. Par. 1503,
ibid.
Duplicate pay rolls will be duly signed by the men, and forwarded by the com-
manding officer by mail to the paymaster who has been designated by the department
commander to pay the command. Par. 1505, ibid. For regulations respecting the
payment of troops by check see paragraphs 1502-1527 Army Regulations of 1901.
A paymaster of the Army who alleges that he inclosed certain sums of money in a
package transmitted by him to an officer for the payment of troops, which sums were
not found in the package when received, the seals being unbroken, is not entitled to
credit therefor. 6 Compt. Dec. , 940.
A soldier of a company which performed duty usually performed by engineer sol-
diers, but which was regularly mustered and paid as a company of infantry, is not
entitled to pay as an engineer soldier. Ibid., 25.
4 An officer of the Pay or Medical Department can not exercise command, except
in his own department; but by virtue of his commission he may command all enlisted
men like other commissioned officers. Par. 18, A. R., 1901.
312
MILITARY LAWS OF THE UNITED STATES.
CLERKS TO PAYMASTERS.
clerks masters ^05. Paymasters and additional paymasters shall be
fiQA«ps' vV?9Q7'- allowed a capable noncommissioned officer or private as
oy, s. o, v. Oj p. 6«f/,
sU2o V?8!)0 -259: derk. When suitable noncommissioned officers or privates
i45n s 10 v18Ls' p' can no* ke procured from the line of the Army, they are
145. June 3 o, authorized, by and with the approbation of the Secretary
B.S. Of War, to employ citizens as clerks, at a salary of fourteen
hundred dollars a year. l Act of June 30, 1882 (22 Stat. L. ,
118).
806. Hereafter the pay of army paymasters' clerks who
have served as such over fifteen years shall be one thou-
sand eight hundred dollars per annum; the pay of army
paymasters' clerks who have served as such over ten years
shall be one thousand six hundred dollars each per annum;
the pay of army paymasters' clerks who have served as
such over five years shall be one thousand five hundred
dollars each per annum; the pay of other army pay-
masters' clerks shall be one thousand four hundred dollars
each per annum. Act of May 26, 1900 (31 Mat. L., 209).
PAY OF COMMISSIONED OFFICERS.
1882 v zp us
Sec.ii9b,
Pay of clerks.
May 26, 1900, v
31, p. 209.
ERSITY
OF
807. Rates of pay.
808. The same, militia and volunteers.
809. Principal assistant to Chief of Ord-
nance.
810. Mounted pay.
811. No increase for brevet rank.
812-813. Advances of pay.
814. Increased pay for higher command.
815. The same, restriction.
816. The same, foreign service.
817. Allowances, restriction.
818-823. Longevity pay.
823 a. Pay of volunteers.
824. Retired pay.
825. The same, officers wholly retired.
826-828. Pay during absence.
829. Absence without leave.
Rates of pay to
officers.
July 15, 1870, s.
24, v. 16. p. 320;
July 24, 1876, v.
19, p. 97.
Sec. 1261, B.S
807. The officers of the Army shall be entitled to the
2 herein stated after their respective designations : 3
The General, thirteen thousand five hundred dollars a
The Lieutenant-General, eleven thousand dollars a year.
Major-general, seven thousand five hundred dollars a
year.
1 For travel allowances of paymasters' clerks see paragraph 847, post. Salaries
of clerks to paymasters are now graded according to length of service. See next
paragraph for rates of pay for periods of service.
2 Pay is the monthly pecuniary compensation of officers and soldiers of the Army,
as fixed by sections 1261, 1280, etc., Revised Statutes. It is quite distinct from
" allowances." Dig. Opin. J. A. G., par. 1894; X Opin. Att. Gen., 285. The right to
pay begins and ends with the period of legal service. Except by special authority of
Congress an officer or soldier can not be paid for military service rendered before
appointment, enlistment, or muster in. See note 3 to paragraph 821, post. See also
the chapter entitled COMMISSIONED OFFICERS.
3 For longevity pay, see paragraph 818, post.
4 This office has ceased to exist as a grade of rank in the military establishment.
MILITARY LAWS OF THE UNITED STATES. 313
Brigadier-general, five thousand five hundred dollars a
year.
Colonel, three thousand five hundred dollars a year.
Lieutenant-colonel, three thousand dollars a year.
Major, two thousand five hundred dollars a year.
Captain, mounted, acting judge-advocate, and chaplain
of volunteers, two thousand dollars a year.1
Captain, not mounted, and chaplain, eighteen hundred
dollars a year.
Squadron and battalion adjutants, cavalry, infantry, and
engineers, eighteen hundred dollars a year.2
First lieutenant, mounted, sixteen hundred dollars a
year.
Squadron and battalion quartermaster and commissary,
cavalry, infantry, and engineers, sixteen hundred dollars a
year.2
First lieutenant, not mounted, fifteen hundred dollars a
year.
Second lieutenant, mounted, and veterinarian, cavalry
and artillery,3 fifteen hundred dollars a year.
Second lieutenant, not mounted, fourteen hundred dol-
lars a year.
Aid and military secretary to the lieutenant-general,
the pay of lieutenant-colonel.4
Aid to major-general, two hundred dollars a year, in
addition to pay of his rank.
Aid to brigadier-general, one hundred and fifty dollars
a year, in addition to pay of his rank.
Acting assistant commissary, one hundred dollars a year,
in addition to pay of his rank.5
1 Section 15, act of February 2, 1901 (31 Stat. L., 751); act of July 8, 1898. (30
ibid., 729).
2 Sections 2, 10, and 11, act of February 2, 1901 (31 Stat. L., 748 and 750).
3Section 2, act of May 12, 1898 (30 Stat. L., 406); section 20, act of February 2,
1901 (31 ibid., 753).
4Section 1097, Revised Statutes; joint resolution No. 9, February 5, 1895 (28 Stat.
L., 968).
5 Higher compensation for staff service is given by law in several forms, as follows:
1. In the form of increased rank, accompanied by the pay or allowances of a higher
grade in lieu of the pay and allowances of the grade which the officer holds under
his commission, as in the case a lieutenant, or captain dismounted detailed as an acting
judge-advocate, or as in the case of the superintendent and commandant of cadets at
the Military Academy.
2. In the form of a higher salary, without change in rank or grade, as in the case
of a lieutenant detailed as regimental adjutant or quartermaster, prior to March 2,
1899 (sec. 1261, R. S. ) , or as is the case with certain assistant professors and instructors
of tactics at the Military Academy.
3. In the form of a specific sum allowed by law, in addition to the pay and allow-
ances of the grade or rank held by the officer under his commission, as in the case of
aids to major-generals or brigadier-generals. See 5 Compt. Dec., 971, 975.
The positions of acting judge-advocate and aid to major-general in the Army are
314 MILITARY LAWS OF THE UNITED STATES.
Ordnance storekeeper, in office of Chief of Ordnance,
the pay of major. Acts of May 1, 1882 (22 Stat. Z., 52);
June 6, 1896 (29 ibid., 256).
Military storekeeper, the pay of captain, mounted.1 Act
of July 1, 1898 (30 Stat. Z., 571).
Contract and dental surgeon, not to exceed eighteen
hundred dollars a year.2
un°tSand Jnl: 808- Officers * * * of the Volunteer Army, and of
11 April 22 1898 ^e militia of the States, when in the service of the United
s. 12, v. so, p. SGI.' states, shall be in all respects on the same footing as to
pay, allowances, and pensions as that of officers *
of corresponding grades in the Regular Army. Sec. 12,
act of April 22, 1898 (30 Stat. L., 361).
Pay of princi- 809. The principal assistant in the Ordnance Bureau
pal assistant in . «
ordnance BU- shall receive compensation, including pay and emoluments,
Feb. 27, is??, v. not exceeding that of a major of ordnance.3
19, p. 243.
Sec. 1279,R.S.
Feb! 27^1877^. ^10. Officers of the Army and of volunteers assigned to
i.s. duty which requires them to be mounted shall, during the
time they are employed on such duty, receive the pa}7,
emoluments, and allowances of cavalry officers of the same
grade, respectively.*
incompatible, and an officer is not entitled to the additional pay of both positions at
the same time. 5 Compt. Dec., 971.
Lieutenants serving as regimental (squadron and battalion) commissaries are not
entitled to additional pay as acting commissaries of subsistence. 5 Compt. Dec., 761.
Captains, other than regimental commissaries, are entitled to additional pay. Dig.
Opin. J. A. G., par. 1910.
^his office has ceased to exist as a grade of rank on the active list of the Army.
2Section 2, act of May 12, 1898 (30 Stat. L., 406); section 19, act of February 2,
1901 (31 ibid., 753). The three contract dental surgeons first appointed are entitled
to $60 per month additional pay for the performance of the duties prescribed in that
section.
3 And the Ordnance storekeeper on duty as disbursing officer and assistant to the
Chief of ordnance. See paragraph 1159, note, and paragraph 1160, post.
4 A mounted officer is one who, by statute, regulations, or army organization, is
"required" to be mounted at his own expense. Harold v. TJ. S., 23 Ct. Cls., 295.
An officer of a battery designated by the President as a "light battery" is entitled
to mounted pay from the date of such designation. Ibid. Officers are not assigned
to duty "requiring them to be mounted" when no order or authorization requiring
them to mount themselves has been issued by the War Department, and they have
merely been riding Government horses, by permission, and have been furnished with
Government equipments. Forbes v. U. S. , 17 Ct. Cls., 32. Nor are officers so assigned
within the meaning of the act of February 12, 1877, where they are simply mounted
on Government horses captured from Indians, and do not furnish, at their own
expense horses, saddles, bridles, sabers, pistols, spurs, and other cavalry equipments.
Ibid.; Carter v. U. S., 22 ibid., 73; see also Eskridge v. U. S., 30 ibid., 290.
The following officers, in addition to those whose pay is fixed by law, are entitled
to pay as mounted officers: Officers of the staff corps below the rank of major, offi-
cers serving with troops of cavalry, officers of a light or siege battery duly organized
and equipped, authorized aids duly appointed, officers serving as military attaches
to the embassies and legations of the United States at foreign capitals, officers serv-
ing with companies of mounted infantry, and officers on duty which requires them
to be mounted and which is so certified to by the Secretary of War or the depart-
ment or corps commander on their first pay vouchers while on such duty, the certifi-
MILITARY LAWS OF THE UNITED STATES. 315
811. Brevets conferred upon commissioned officers shall
not entitle them to any increase of pay. Ma J Vis
s. 9, v. 13. p. 488.
ADVANCES OF PAY.
812. The President may * * * direct such ad vances mon™ n ces °f
as he may deem necessary and proper to persons in the
naval and military service employed on distant stations
where the discharge of the pay and emoluments to which
they may be entitled can not be regularly effected.1
813. Troops about to embark for service in the Philip- Advance to
. troops embark-
pine Islands may, in the discretion of the Secretary of mg for Philip-
pine Islands.
War, be paid one month's wages in advance prior to em- July 7, isos, v.
barkation.2 Act of July 7, 1898 (30 Stat. Z., 780).
cate being cited by the officers on their subsequent vouchers. Officers ceasing to
draw mounted pay will file with the last pay voucher a copy of the order relieving
them from duty which required them to be mounted. Acting judge-advocates of
military departments, duly detailed, are entitled while so serving to the rank, pay,
and allowances of captains of cavalry. Par. 1450, A. R., 1901.
The act of July 17, 1862 (12 Stat. L., 594), allowed to officers " assigned to duty
which required them to be mounted" certain increased pay. So section 1261,
Revised Statutes, entitles captains and lieutenants, when "mounted," to receive
respectively $200 and $100 per annum of pay more than when "not mounted."
Held, that to entitle officers to the increase of pay under these statutes it was not,
and is not, essential that the duties required of them should make it absolutely
necessary that they should be mounted, but that it was, and is, sufficient if these
duties were, or are, such as are usually and appropriately performed by mounted
officers, and such as can not be performed effectively or without material embarrass-
ment and inconvenience to the service except by such officers (note in this connec-
tion the construction in Griswold v. Hepburn, 2 Duvall, 20, of the provision in
Art. I, sec. 8 § 18 of the Constitution, that Congress shall have the power "to make
all laws which shall be necessary,1' etc., for the execution of its special powers —
as meaning not indispensable but appropriate and conducive to the purpose);
and further that the certificate of the proper commander of an officer (as of the
Chief Signal Officer in a case of an officer engaged in signal duty, or of the Superin-
tendent at West Point in a case of an acting quartermaster stationed at that post),
that the duties of the officer properly required (in the sense above indicated) that
he should be mounted, would (the Secretary of War approving) be sufficient to
entitle him to receive the additional pay. Held, that a captain or lieutenant detailed
as a professor in a college, under section 1225, was not entitled to mounted pay. Dig.
Opin. J. A. G., par. 1909.
Where the duty to which an infantry officer is assigned, in the opinion of the
department commander, requires him to be mounted, and such officer furnishes
horses and forage, he is entitled to be paid as a mounted officer until he is notified of
the changed opinion of the department commander. Eskridge v. U. S., 30 Ct. Cls.,
290.
An officer of a battery of artillery, designated by the President as a mounted bat-
tery, is entitled to mounted pay from the date of such designation, though the bat-
tery was not equipped until a later date. Harrold r. U. S., 23 Ct. Cls., 295.
A captain detailed as regimental adjutant or regimental quartermaster under sec-
tion 2 of the act of March 2, 1899 (30 Stat. L., 977), is entitled to the pay of a captain
mounted. 5 Compt. Dec., 761. x
1 An advance of public money made by a paymaster of the Army to an officer
ordered to a distant station, when made by direction of the President, as provided
by section 3648 of the Revised Statutes, to provide for the pay of such officer for a
future period, is not a payment for services for the correctness of which the pay-
master is held responsible, but is an advance of public money to the officer in ques-
tion, for which he, and not the paymaster, is accountable to the United States. 4
Compt. Dec., 250.
2 The act of May 2, 1898 (30 Stat. L., 420) had contained the same provision.
316 MILITARY LAWS OF THE UNITED STATES.
INCREASED PAY TO OFFICERS EXERCISING COMMANDS HIGHER THAN
THEIR GRADES.
Pay of grade 814. In time of war every officer serving with troops
appropriate to .
command exer- operating against an enemy who shall exercise, under
cised in time of r . J .
war. assignment in orders issued by competent authority, a
1898, v. so, p. '364! command above that pertaining to his grade shall be
entitled to receive the pay and allowances of the grade
appropriate to the command so exercised : Provided, That
a rate of pay exceeding that of a brigadier-general shall
not be paid in any case by reason of such assignment.1
Sec. 7, act of April 26, 1898 (30 Stat. L., 364).
1 Under section 7 of the act of Congress approved April 26, 1898, an officer is not
entitled to the pay and allowances of the grade appropriate to a command exercised
by him above that pertaining to his grade except when ' ' serving with troops oper-
ating against an enemy" and exercising the command of the higher grade " under
assignment in orders issued by competent authority. ' ' It has been held by the Sec-
retary of War that troops serving within the limits of the United States at a time
when there is no foreign army within said limits are not operating against an enemy,
notwithstanding the existence of war conditions. For the purpose of restricting
assignments to command under this section to "competent authority," it has also
been decided that such authority can be exercised only by the Secretary of War, or
by the commanding general of an army "operating against an enemy." Circular
18, A. G. 0., 1898. See also G. 0. 86, A. G. O., 1898.
The command prescribed by law for an officer of the Army must be held to be the
appropriate command of that grade, and such command is not subject to change by
Executive order, or regulation, except as provided by law. 5 Compt. Dec., 354.
An officer of the Army who, under assignment in orders issued by his superior
officer, exercises a command above that pertaining to his grade exercises such com-
mand under competent authority within the meaning of section 7 of the act of April
26,1898. Ibid., 354.
Under section 7 of the act of April 26, 1898, an officer of the Army serving in time
of war with troops operating against an enemy, who is required by the Army Regu-
lations, upon a specified contingency, to exercise a command above that pertaining
to his grade, must be regarded as exercising such ' ' command under assignment in
orders issued by competent authority," and is entitled to the pay of the higher
grade. Ibid., 639.
The office of an officer of the Army and his rank are not necessarily identical.
Wood v. U. S., 107 U. S., 414; 5 Compt. Dec., 280.
A captain in the Army while performing duty as chief quartermaster does not exer-
cise a command within the meaning of section 7 of the act of April 26, 1898, and is
not entitled to increased pay for exercising a command above that pertaining to his
grade. 5 Compt. Dec., 137. A judge-advocate who is assigned by a corps com-
mander to act as judge-advocate on his staff does not thereby acquire any higher
rank and is not entitled to any additional pay. Ibid., 168.
A major of infantry who, on the assignment of the lieutentant-colonel to the com-
mand of the regiment, was assigned to the command of a battalion was not assigned
to a command above that pertaining to his grade, and is not entitled to the increase
of pay provided by the act of April 26, 1898, for exercising a command above that
pertaining to his grade. Ibid., 862.
The fact that a major of the Army was for a time assigned to the command of a
post garrisoned by two batteries of artillery does not make such a command the
appropriate command of a major, and a captain assigned to such a command is not
entitled to the pay of a major. Ibid., 891.
There is no law authorizing the allowance of additional pay to an enlisted man for
performing the duties of a commissioned officer, and a claim for such pay can not be
allowed. 4 Compt. Dec., 120.
A second lieutenant of the Army who exercised the command of a first lieutenant
did not "exercise a command above that pertaining to his grade," within the mean-
ing of the act of April 26, 1898, and he is not entitled to the pay of the higher grade.
6 Compt. Dec., 905.
Where an officer of the Army exercised a higher command and, under section 7
MILITAEY LAWS OF THE UNITED STATES. 317
815. For additional pay for increased rank when in com- Restriction May
mand by competent authority, * * * dollars: Provided,***..
That no part of this sum shall be used for pay of officers
assigned to higher command than their rank in the Army,
unless such service shall be continuous for a period of not
less than three months. Act of May 26, 1900 (31 Stat.
Z., VII).
INCREASED PAY FOR FOREIGN SERVICE.
816. Hereafter the pay proper of all officers and enlisted fojen.^ *ear*fcefor
men serving beyond the limits of the States comprising 31Mparg023' 1901» v
the Union and Territories of the United States contiguous
thereto shall be increased ten per centum for officers and
twenty per centum for enlisted men over and above the
rates of pay proper as fixed by law for time of peace, and
the time of such service shall be counted from the date of
departure from said States to the date of return thereto.1
Act of March 0, 1901 (31 Stat. Z., 903).
of the act of April 26, 1898, is entitled to the pay and allowances of the grade appro-
priate to the command so exercised, and, under section 1262, Revised Statutes, is also
entitled to increased pay for length of service, such increased pay to be computed on
the pay of the grade appropriate to such higher command. Ibid., 710.
1 This enactment replaces the requirement in pari materia of the act of May 26,
1900. (31 Stat. L., 211.) The act of March 3, 1901 also provides that "the officers
and enlisted men who have served in China at any time since the twenty-sixth day
of May, nineteen hundred, shall be allowed and paid for such service the same
increase of pay proper as is herein provided for." Under this statute an officer is
entitled to 10 per cent increase of his pay proper for the highest grade he holds, or
of the highest grade to which his pay and allowances are lawfully assimilated, but
such increase of pay does not operate to increase his pay for length of service. See
6 Compt. Dec., 944.
The act does not make any change in the regular pay or allowance .of the Army,
but makes provision for a special or extra allowance to officers and enlisted men of
the Army while they are serving in the places named in the act. It obviously
applies only to service rendered on and after the date of the act.
The provisions of the various laws, to wit, section 11, act of June 20, 1864 (13
Stat. L., 145), section 1265, Revised Statutes, act of May 8, 1874 (18 Stat. L., 43), and
act of July 29, 1876 (19 Stat. L., 102), authorizing leaves of absence to be allowed to
officers for specified periods "without deduction of pay or allowances" have not been
construed to entitle an officer while on leave to allowances the payment of which
was conditioned upon the performance of some particular service, such as payment
istant commissary under section 1261, Revised Statutes, or
of $100 a year as acting assistant commissary
pay for exercising a higher command under section 7, act of April 26, 1898 (30
Stat. L., 365).
The 10 per cent increase on pay proper being allowed by the act only to officers
serving in the places named therein, I am of the opinion that an officer on duty in
one of the places named in the act, who is relieved from duty and given a sick leave
or an ordinary leave, is not entitled to the 10 per cent increase in computing his pay
after the date on which he leaves the place where the increased pay for service therein
is authorized by law. 6 Comp. Dec., 948.
The provisions of the act in respect to the 10 per cent increase therein provided
were special and peculiar, and while the 10 per cent increase would undoubtedly be
included in the term "pay" as to officers serving in places named in the act, it
would not be included in either of the terms "pay" or "allowances" as to officers
not serving in such places.
In all the laws relating to contract surgeons they are clearly distinguished from
officers of the Army. See sections 1 and 2, act of May 12, 1898 (30 Stat. L., 406) ; sec-
tion 7, act of March 2, 1899, to increase the efficiency of the Army (30 Stat. L., 979),
and the acts providing for mileage to officers traveling without troops and to con-
318 MILITARY LAWS OF THE UNITED STATES.
817t No allowances shall be made to officers in addition
294, s. 24, v. 16, p. {o their pay except as hereinafter provided. 1
Sec. 1269, R.S.
LONGEVITY PAY.
service pay. 818. There shall be allowed and paid to each commis-
294?sy24,V. 16,' p! sioned officer below the rank of brigadier-general, includ-
s'ec.i262,B.s. ing chaplains and others having assimilated rank or pay,
ten per centum of their current yearly pay for each term
of five years of service.2
4oNpertoceSteeodf ^1^< The total amount for such increase for length of
ye!uiy 15 yi8?o c service shall in no case exceed forty per centum on the
294, s. 24, v. 16, p. yearly pay of the grade as provided by law.
Sec. 1263, R.S.
820. *n no case sna^ the pay of a colonel exceed four
1 C°] thousand five hundred dollars a year, or the pay of a lieu-
294Usy245'v 8i6 ' p' tenant-colonel exceed four thousand dollars a year.
320! Sec.l267,R.S.
lo^leVity ePayr 821- ®n and after the passage of this act, all officers of
hos^cC07mjune(i8 the Army of the United States who have served as officers
1878, v. 20, p. 150. ]n the volunteer forces during the war of the rebellion, or
* as enlisted men in the armies of the United States, regu-
lar or volunteer, shall be, and are hereby, credited with
the full time they may have served as such officers and as
such enlisted men in computing their service for longevity
pay and retirement.3 Sec. 7, act of June 18 , 1878 (20
Stat. L.,150).
tract surgeons, acts of January 5, 1899, and March 3, 1899 (30 Stat. L., 775, 1068),
and act of May 26, 1900 (31 Stat. L., 210), and section 1342, Kevised Statutes.
It has been uniformly held that a contract surgeon, also called acting assistant
surgeon, is neither an officer nor an enlisted man and is not a member of the Army,
but has the status of a civilian employee. See 26 Ct. Cls., 302; Dig. 2d Compt.
Dec., vol. 3, sections 929, 932; 4 Compt. Dec., 631, 632; 5 Compt. Dec., 86, 275; 6
Compt. Dec., 356, 376, 403.
As a contract surgeon is neither an officer nor an enlisted man he is not entitled to
increased pay under the act of May 26, 1900, supra. Dec. Compt. Treas. , Oct. 19,
1900, Cir. 42 A. G. O., 1900.
1 Pay is the fixed and direct amount given by law ; allowances or emoluments are
indirect or contingent remuneration; both are compensation. Sherburne v. U. S.,
16 Ct. Cls., 491. See also note 2 to paragraph 807, ante.
2 Longevity pay is founded upon the equivalent of increased judgment and capacity
acquired by the experience of continued service. Brown v. U. S., 18 Ct. Cls., 545.
Acts authorizing longevity pay are remedial statutes, and officers are entitled, to a
liberal interpretation of them, the language used being given as broad a meaning as
Congress maybe presumed to have intended. Hendee v. U. S., 22 Ct, Cls., 134;
19 ibid., 153.
3 An officer once in actual service, under color of office, is entitled to have the time
credited to him in the computation of longevity pay. Gould r. U. S., 19 Ct. Cls.,
593. The time of actual service is to be credited to an officer in the computation of
his longevity pay, without regard to a defect in his title to the office. Palen v.
U. S., 19 ibid., 389. Service as chaplain prior to the act of March 2, 1867 (14 Stat. L.,
423), can be reckoned in computing longevity pay, chaplains being in the military
service prior to that date. U. S. v. LaTourette, 151 U. S., 572. Service as a contract
surgeon can not be reckoned in such computation. Byrnes v. U. S., 26 Ct. Cls.,
302; Hendee v. U. S., 124 U. S., 309. Before the passing of the act of July 28, 1866,
as well as afterwards, the corps of cadets of the Military Academy was a part of the
MILITARY LAWS OF THE UNITED STATES. 319
822. The actual time of service in the Army or Navy, or
both, shall be allowed all officers in computing their pay. 2iF£b34264'1881-v-
Act of February % 1881 (21 Stat. Z., 346).
823. From and after the first day of July, eighteen hun- edT0°n y^ari^pay
dred and eighty-two, the ten per centum of increase for ofj^rne eso 1882,
length of service allowed to certain officers by section 1262 v- 22' p- 118-
of the Revised Statutes * shall be computed on the yearly
pay of the grade fixed by sections twelve hundred and
sixty-one2 and twelve hundred and seventy-four3 of the
Revised Statutes. Act of June 30, 1882 (22 Stat. L. , 118).
PAY OF VOLUNTEERS.
823 a. All officers and enlisted men of the Volunteer Pfty. allow-
ances, etc.. of vol-
Army, and of the militia of the States when in the service of jgj^6" and mi'
the United States, shall be in all respects on the same foot- J. 12, April 22,
••• loyo, v. ou, p. ooo.
ing as to pay, allowances, and pensions as that of officers
and enlisted men of corresponding grades in the Regular
Army.4 Sec. 12, act of April 22, 1898 (30 Stat. Z., 363).
RETIRED OFFICERS.
824. Officers retired from active service shall receive ofjiJJra?f retired
seventy-five per centum of the pay of the rank upon which 294Usy245 V18i6'p'
they are retired. 5 c2?^?8' ^
Roberta's Case, 10 Ct. Cls., 283. Sec.'l27
c. 178, v. 18, p. 512,
74, R. S.
Army of the United States, and a person serving as a cadet was serving in the Army;
and the time during which a person has served as a cadet was, therefore, actual time
of service by him in the line of the Army. Morton v. U. S., 112 U. S., 1, 7.
In computing longevity pay, service performed as cadets at the Military or Naval
Academy, or as enlisted men of the Army or Navy, will be counted. Par. 1311,
A. R., 1895.
1 Paragraph 818, ante.
2 Paragraph 807, ante.
3 Paragraph 824, post.
4 Section 1292 of the Revised Statutes contains the requirement that "in all matters
relating to the pay and allowances of officers and soldiers of the Army of the United
States, the same rules arid regulations shall apply to the Regular Arniy and to volun-
teer forces mustered into the service of the United States for a limited period."
The date on which a volunteer officer, appointed by the President, formally accepts
his appointment should be considered as the date of the commencement of his mili-
tary service. No such officer should be recognized as having been in the military
service of the United States, under his appointment, because of any service that may
have been rendered by him prior to his formal acceptance of that appointment.—
Decision Sec. War, June 28, 1899. Circular 32, A. G. 0., 1899.
5 An officer of the Army who has been retired is entitled to the pay provided for
a retired officer only, even though he may not have been relieved from active duty.
5 Compt. Dec., 53. Retired officers toeing in the military service of the Government,
the increased pay of 10 per cent for each five years' service applies to the years so
parsed in the service after retirement as well as before. U. S. v. Tyler, 10*5 U. S.,
244, 246, and 16 Ct. Cls., 223.
An officer on the retired list to whom the "full pay and allowances of brigadier-
general" has been granted by Congress is not entitled to an allowance of forage.
XVII Opin. Att. Gen., 390, where, by a private act of Congress, an ex-officer is placed
upon the retired list and the act directs that his retired pay shall be due and payable
to him from the date of the passage of the act, his pay will begin at the date of the
act and not at the date of his acceptance. 1 Compt. Dec., 172.
320 MILITARY LAWS OF THE UNITED STATES.
OFFICERS WHOLLY RETIRED.
whoJy°rfet*eCders 825« Officers wholly retired from the service shall be
42AsUl73'v!8i621; p. entitled to receive, upon their retirement, one year's pay
29s«c.i276,R.s. an<^ allowances of the highest rank held by them, whether
by staff or regimental commission, at the time of their
retirement. *
PAY DURING ABSENCE.
^Pay during ab- 826. Officers when absent on account of sickness or
wounds, or lawfully absent from. duty and waiting orders,
42^0? V18i62,' p. shall receive full pay; when absent with leave, for other
^5,Msar3i%18i2; causes, full pay during such absence not exceeding in the
i864?£ As??, ill aggregate thirty days in one year, and half -pay during
i5™m^'2M?i such absence exceeding thirty days in one year. When
Ma/' 8,6i8^4,32c.; absent without leave, they shall forfeit all pay during such
juiyV29!8i8?6,4c.; absence, unless the absence is excused as unavoidable.2
239, v. 19, p. 102! u. S. v. Williamson, 23, Wall., 411. Sec. 1265, B. S.
Leaves of ab- 827. All officers on duty shall be allowed, in the discre-
pay?* 2°n ^ tion of the Secretary of War, sixty days' leave of absence
v. 19, p. 102. ' without deduction of pay or allowance : Provided, That the
same be taken once in two years : And provided further,
That the leave of absence may be extended to three months,
if taken once only in three years, or four months if taken
only once in four years. 3 Act of July 29, 1876 (19 Stat. L. ,
102).
lrl provision of section 1275, Revised Statutes, that an officer wholly retired
shall receive, upon retirement, one year's pay and allowances, entitles such an officer
to receive a sum equal to the total of one year's pay and all the pecuniary allowances
of an officer of his rank. And held that the fact that an officer, at the time of being
wholly retired, was under a sentence of suspension from rank and pay, did not affect
his right to receive such full sum upon the retirement. Dig. Opin. J. A. G., par. 2198.
2 Section 1265 of the Revised Statutes provides that an officer absent without leave
shall forfeit all pay unless the absence is excused as unavoidable; the rule prevails
whether a court-martial declares a forfeiture or not. Dodge r. U. S., 33 Ct. Cls., 28.
The pay of an officer absent without leave is not absolutely forfeited, but only when
it has been made to appear that the absence was not unavoidable. Smith v. U. S. ,
23 Ct. Cls., 452. A statement by the Adjutant-General that an officer was "absent
without leave" is conclusive as to his status, and is not affected by statements made
by officers of the War Department implying the belief that the officer was not
responsible for his absence. 3 Dig. , 2d Compt. Dec. , par. 2. The act of March 3, 1 863,
section 1265, Revised Statutes, provides that an officer absent without leave shall
forfeit his pay. If payment has been made it may be recovered. Lapse of time does
not preclude the Government from charging an officer with a payment made to him
contrary to law. Crowell v. U. S., 22 Ct. Cls., 69.
8 Section 1265 of the Revised Statutes was replaced by the act of May 8, 1874 (18
Stat. L., 43), which provided that ''all officers on duty west of a line drawn north
and south through Omaha City and north of a line drawn east and west upon the
southern boundary of Arizona shall be allowed sixty days' leave of absence without
deduction of pay or allowances: Provided, That the "leave is taken but once in two
years: And provided further, That the leave may be extended to three months if taken
only once in three years, or four months if taken once only in four years." This
statute was superseded by the act of July 29, 1876, above cited. For statutory pro-
MILITAEY LAWS OF THE UNITED STATES. 321
com-
828. Leaves of absence which may be granted officers of J)a?esaofec
the Regular and Volunteer Army serving in Alaska or SrmlnSkm and
without the limits of the United States, for the purpose of 31Mpar^|' 1901.v-
returning thereto, or which may have been granted such
officers for such purpose since the thirteenth day of Octo-
ber, eighteen hundred and ninety-eight, shall be regarded
as taking effect on the dates such officers reached or may
have reached the United States, respectively, and as ter-
minating, or as having terminated, on the respective dates
of their departure from the United States in returning to
their commands as authorized by an order of the Secretary
of War, dated October thirteenth, eighteen hundred and
ninety-eight.1 Act of March 2, 1901 (31 Stat. Z., 90%).
visions respecting leaves of absence to graduates of the Military Academy, see the
chapter entitled THE MILITARY ACADEMY.
Section 31 of the act of March 3, 1863 (12 Stat. L., 736), does not apply to an officer
ordered to proceed to his home and there await orders, though the order was issued
at his own request. An officer "absent with leave" is at liberty to go where^ie will;
an officer ordered to a particular place, there to await orders, must remain in that
place and continue as much under orders as though assigned to any ordinary military
duty. Williamson v. U. S., 10 Ct. Cls. 50, and 23 Wall., 411; Phisterer v. IT. S.,
11 Ct. Cls. 98, and 94 U. S., 219.
An officer ordered home to await orders may change his place of residence, report-
ing the fact to the War Department. Phisterer v. U. S., 12 Ct. Cls. 98. An officer
ordered home to await orders can not make his home ambulatory by simply report-
ing from the places where he may chance to be. Chilson v. U. S., 11 Ct. Cls. 691.
leaves of absence will be granted in terms of months and days as "one month,"
"one month and ten days." Leave for one month, beginning on the first day of a
calendar month, will expire with the last day of the month, whatever its number of
days. • Commencing on an intermediate day, the day will expire the day preceding
the same day of the next month. The day of departure, whatever the hour, is
counted as a day of duty; the day of return as a day of absence. Par. 63, A. R., 1901.
A leave of absence commences on the day following that on which the officer
departs from his proper station. The expiration of his leave must find him at his
post, except as indicated in paragraphs 1467 and 1484. A leave of absence granted
an officer in the field, or on special duty, will :ake effect on the termination of the
campaign, or on the completion of such duty, unless in the opinion of the depart-
ment commander his services can sooner be spared, in which case it will take effect
at such time as the department commander may direct. In all other cases an officer
is expected to avail himself of a leave as soon as proper facilities offer, unless a spe-
cific date is stated in the order, and if unable to do so, he will report the fact to the
authority granting the leave. Par. 64, ibid.
Held (1871) , that an officer ordered to his home to await orders did not occupy the
status of an officer on leave of absence, and was not therefore on half pay during
the period of thus awaiting orders, but was entitled for such period to the full pay of
his rank. Dig. Opin. J. A. G., par. 1906. This opinion was affirmed in the same
case (United States v. Williamson) by the Court of Claims in 1873 (9 Ct. 01. 503,)
and by the Supreme Court in the next year (23 Wallace 411) . But in the United
States v. Phisterer, 4 Otto, 219, it was held that an officer ordered to his home to
await orders was not entitled to commutation for quarters and fuel, his home not being
a "station" in the sense of par. 1080, Arrny Regulations. 'See G. O. 78, Hdqrs. of
Army, 1877, issued in consequence of this decision. But see the recent case of United
States v. Lippitt, 10 Otto, 663, where the officer was ordered to the headquarters of a
military department to await orders.
PAY DURING ABSENCE IN CONFINEMENT.
Officers and enlisted men in arrest and confinement by the civil authorities will
receive no pay for the time of such absence; if released without trial, or after trial
22924—08 21
322 MILITARY LAWS OF THE UNITED 8TATES.
ABSENCE WITHOUT LEAVE.
Pay01durin| ab- 829- Every officer who is dropped by the President from
ieeave.e wlthout the rolls of the Army, for absence from duty three months
294^yi7%*8i6;£ without leave, shall forfeit all pay due or to become due.
319!
Sec. 1266, B. S.
COMMUTATION OF QUARTERS.
Par.
830. Allowance.
831. Duty without troops.
832. Ratio of commutation.
Par.
833. Commutation of Lieutenant-Gen-
eral.
834. Temporary absence.
835. Officers detailed abroad.
830. At all posts and stations where there are public
ill8' s' quarters belonging to the United States, officers may be
furnished with quarters in kind in such public quarters,
and not elsewhere, by the Quartermaster's Department,
assigning to the officers of each grade, respectively, such
number of rooms as is now allowed to such grade by the
rules and regulations of the Army: Provided, That at
places where there are no public quarters, commutation l
and acquittal, their right to pay for the time of such absence is restored. Par. 1464,
A. R.,1901.
The fact that an officer or soldier is under charges does not by military law deprive
him of his pay, although under the application of military rules exceptions may
arise to this rule. Dodge v. U. S., 33 Ct. Cls., 28.
The pay of officers detained by the civil authorities continues, but an officer absent
without leave in willful diregard of his obligation must be held responsible for the
results. Ibid.
1 Commutation in the military or naval service is money paid in substitution of
something to which an officer, sailor, or soldier is entitled; being regulated by statutes
and regulations, it can not be allowed by inferior authority. Jaegle v. U. S., 28 Ct.
Cls. 133. The right of an officer of the Army to commutation of fuel and quarters
springs out of the general authority of the War Department, and has been indirectly
sanctioned by Congress from the origin of the Government. This usage has been so
long practiced in the Army, and so often sustained by Congress in appropriations for
the payment of such commutations, that the right of officers under the regulations
of the Army can not now be questioned. Whittlesey v. U. S., 5 Ct. Cls., 99. Since
the foregoing decision was rendered the allowance of quarters for the several grades
of officers of the Army and the monthly rate of commutation therefor having been
fixed by statute the practice can no longer be said to rest upon usage or upon the
authority of regulations. See acts of June 18, 1878, and June 23, 1879. See also
Dig. Opin. J. A. G., par. 1941.
Officers on the active list detailed as professors of colleges and engineer officers
engaged upon civil works are entitled to commutation of quarters and to purchase
fuel under the provisions of section 9 of the act of June 17, 1878. Such commutation
in the case of an engineer officer would not be payable from the appropriation for the
civil work upon which he is engaged. Dig. Opin. J. A. G., pars. 1915,1916. See
also Long v. U. S., 8 Ct. Cls., 398. An officer ordered home to await orders is
not entitled to commutation of quarters, such home not being a military station.
Phisterer v. U. S., 13 Ct. Cls., 110. When a military officer is ordered to the head-
quarters of a military department to await further orders and pursuant to the order
remains there, performing no duty, he is entitled to commutation of quarters. If
such headquarters are in a large city wrhere there are quarters assignable to officers
on duty it is not necessary for him to demand that quarters be assigned him. Lip-
?itt v. U. S., 14 Ct. Cls., 148, and 100 U. S., 063.
Held that the term of description in section v) of the act of June 18. 1878, " at places
where there are no public quarters" includes places where the public quarters were
insufficient for all the officers of the command; and that officers stationed at such
MILITAEY LAWS OF THE UNITED STATES. 323
therefor may be paid by the Pay Department to the officer
entitled to the same at a rate not exceeding twelve dollars
per room per month, and the commutation for quarters
allowed to the General shall be at the rate of one hundred
and twenty-five dollars per month, and to the Lieutenant-
General at the rate of one hundred dollars per month.
Sec. 9, act of June 17, 1878 (20 Stat. Z., 151).
The Secretary of War may determine what shall consti- tr^0utgy without
tute travel and duty without troops within the meaning of 31Margo1> 1901> v>
the laws governing the payment of mileage and commuta-
tion of quarters to officers of the Army. Act of March®,
1901(31 Stat. L.,901).1
832. No allowance shall be made for claims for quarters
for servants heretofore or hereafter; and that the rate of v 21 np sf* 1879
commutation shall hereafter be twelve dollars per room
per month for officers' quarters, in lieu of ten dollars, as
now provided by law. Act of June 23, 1879 (21 Stat.
Z, 31).
833. The allowance for commutation of quarters to the m^^ £f co™-
Lieutenant-General of the Army shall be one hundred lieutenant -Gen-
dollars per month.2 Act of June 28, 1882 (22 Stat. Z., y Jg" ^ issz,
118).
places, to whom, on account of the insufficiency of the existing accommodations, no
quarters could be furnished would be entitled to the commutation allowance. Dig
Opin. J. A. G., 569, par. 26.
An officer who has quarters in kind at one station does not by a change of station
acquire a right to other quarters or commutation therefor until he vacates quarters
at the former station, and amounts received for such commutation are a proper
charge against him. 3 Dig. 2d Comp. Dec., par. 1139.
Temporary absence from his station on duty which requires an officer of the Army
to travel during a considerable portion of the time does not amount to a change of
station, and the officer does not lose his rights or acquire other rights respecting
quarters by such absence. If there are available quarters at his station he is not
entitled to commutation. Ibid., 1141.
Officers temporarily on duty in the field shall not lose their right to quarters or
commutation thereof at their permanent stations while so temporarily absent. Act
of July 16, 1892, 27 Stat. L., 176.
For allowance for rooms in kind see note 3 to paragraph 738 ante.
Where an army paymaster has paid an officer a sum as a commutation allowance
through an error of law the United States is not bound by such payment, and may
recover the money so paid in a proper action, with interest from the date when the
officer's accounts were settled by the Treasury Department, at the rate established by
the laws of the State in which the action is brought. U. S. v. Dempsev, 104 Fed.
Rep., 197.
1 Under the authority conferred by the act of March 3, ]901, it has been decided
by the Secretary of War that "officers on duty in the War Department, at army and
other general headquarters, attending surgeons and other officers on duty in cities
and other places where public quarters are not furnished, but where enlisted men are
on duty only as guards, orderlies, clerks, and messengers, and recruiting officers at
city stations are regarded as being on duty without troops within the meaning of the
laws and regulations." G. O. 43, A. G. O., 1901.
2 The act of June 28, 1882 (22 Stat. L., 118) , authorized commutation of quarters to
be paid to officers and enlisted men of the Signal Service serving in the arctic regions,
the same in amount as though they were serving in Washington in the District of
Columbia. For regulations in respect to the payment of commutation of quarters
to officers see paragraphs 1489 to 1496, Army Regulations of 1901.
324 MILITARY LAWS OF THE UNITED STATES.
senc^p°raryab" 834- Hereafter officers temporarily absent on duty in
27Fpb4'787'1893'v'the field shall not lose their right to quarters, or commu-
tation thereof, at their permanent station while so tempo-
rarily absent.1 Act of February 87, 1893 (27 Stat. L.,
478).
Feb^7?i893!cv. 835> Hereafter the officers detailed to obtain military
27 p. 478. information from abroad shall be entitled to mileage and
transportation, and also to commutation of quarters while
on duty, as provided when on other duty. Act of Febru-
ary 27, 1893 (27 Stat. Z., 478).
PAYMENTS TO OFFICERS.
Monthly pay- 333 The sums hereinbefore allowed shall be paid in
ments.
Jul;
24, v.
24J?1i615p327o0>s' montnlv payments by the paymaster.5
Sec. 1268 K! S.
1 Officers of the Army acting as Indian agents at places where there are suitable
quarters provided by the Government are not entitled to commutation of quarters.
4Compt. Dec., 210.
An officer relieved from duty at a station where he had quarters in kind and ordered
to report in person for duty at a college during vacation is not entitled to commuta-
tion of quarters prior to the date on which he reports in person at the college. 4
Compt. Dec., 254.
An officer is not entitled to reimbursement for the amount paid for quarters when
serving at a post where there are public quarters to which he could have been assigned
by the Quartermaster's Department. 2 Compt. Dec., 187. Officers can not base
claims to commutation of quarters on refusal or failure to occupy public quarters
provided for their use. Ibid., 223.
Officers of the Army on the retired list who, upon their own application, are
detailed to educational institutions, in accordance with the provisions of the act of
Novembers, 1893, are entitled to the full pay of their rank. 6 Compt. Dec., 120.
Such officers are not entitled to commutation of quarters. Ibid., 506.
The act of May 12, 1898, which limits the compensation of contract surgeons to $150
per month, by implication prohibits the payment of commutation of quarters to con-
tract surgeons. 6 Compt. Dec., 403. An officer who has been relieved from duty
and directed to proceed to his home to await orders is not entitled to commutation
of quarters. Ibid., 233.
2 For instructions respecting the payment of commissioned officers see paragraphs
1298 to 1313, Army Regulations of 1895.
Section 1268 of the Revised Statutes, requires that officers shall be paid monthly;
section 3848, Revised Statutes, in effect, forbids their being paid in advance. Their
right, however, to assign their monthly pay, when duly accrued, has long been
admitted. XV Opin. Att. Gen., 611. The prohibition by Army Regulations of the
transfer of pay accounts before they are due implies the right to transfer them when
or after due. XV Opin. Att. Gen., 271. The pay of an officer authorized to receive
it can be paid by a paymaster only to the officer himself or his proper assignee.
Where two or more persons produce assignments of an officer's pay, or of a portion
or portions of the same, the paymaster should refuse to pay at all. The Government
can not undertake to decide such controversies. Dig. Opin. J. A. G., par. 1923.
An officer will not hypothecate nor transfer a pay account not actually due.
a When due it may be transferred by indorsement, naming the party to whom trans-
ferred, and may be paid by the proper paymaster if satisfied of the genuineness of
the officer's signature and if no stoppage or other disability as to pay prevents. The
date of transfer, certified by the officer whose account it is, will appear in the indorse-
ment. When an officer transfers a pay account, he will, at the time of transfer, com-
municate the fact to the chief paymaster of the department, through the paymaster
who is expected to pay it. If the officer be on leave, or if his accounts be payable
aNote in this connection the opinion of the Attorney-General, in XVI Opins., 191, to the effect
fliat an approved account or voucher issued to a contractor for an amount due him under his con-
tract is " not in any proper sense negotiable paper,"
MILITARY LAWS OF THE UNITED STATES.
325
TRAVEL ALLOWANCES.
MILEAGE.
Par.
844. The same, bond-aided roads.
845. The same, deduction.
846. Restriction on mileage.
847. Paymasters' clerks, expert account-
ant.
848. Mileage paid by paymasters.
849. The same.
to be
1894> v'
Par.
837. Eoute, necessity for travel to be
stated.
838. Duty to be stated in order.
839. Rate.
840. The same, distance, how computed.
841. Sea travel.
842. Travel without troops.
843. Transportation in kind.
837. From and after the passage of this act mileage of
officers of the Army shall be computed over the shortest
usually traveled routes between the points named in the 3 1883 v
order, and the necessity for such travel in the military 22> P- 456-
service shall be certified to by the officer issuing the order
and stated in the order. Act of March 3, 1883 (22 Stat.
£,., 456.)
838. All orders involving the payment of mileage shall
state the special duty enjoined. Act of August 6, 1894 (®7
Stat. L.,237).
839. For mileage to officers and contract surgeons, when Mileage, rate.
1VT&T1 ^ "18QQ v
authorized by law, dollars. Hereafter the 30, p. ioe's.
maximum sum to be allowed and paid to any officer of
the Army shall be seven cents per mile. Act of March 2,
1901 (30 Stat. L.,901).
840. Officers so traveling shall be paid seven cents per Distances, how
*• computed.
mile and no more; distances to be computed and mileage Mar^2, 1901, v.
to be paid over the shortest usually traveled routes, with
deduction as hereinafter provided; and payment and set-
tlement of mileage accounts of officers shall be made
according to distances computed over routes established
and by mileage tables prepared by the Paymaster-General
of the Army under the direction of the Secretary of War;
in Washington, the notification of transfer will be made to the Paymaster-General.
Par. 1447, A. R. 1901.
The assignment of their pay accounts by army officers after the same become
due is authorized by paragraph 1300 of the Army Regulations of 1895, and is legal.
3Compt. Dec., 45.
An officer's " pay account " is not commercial paper, but, in its legal aspect, a
mere receipt, (a) So held that a bona fide assignee of an officer's pay account for a
certain month, who, on receiving payment thereon from a paymaster, delivered to
the latter the account with his name written on the back of same, did not thereby
incur the obligation of an inclorser, or render himself liable as such for the amount
to the paymaster, on its being ascertained that the officer had already himself drawn
his pay for that .month, and that a double payment had thus been made. Dig. Opin.,
J. A. G., par. 1892.
It has been held by the Comptroller of the Treasury that the allotment of any
portion of the pay of a commissioned officer constituted a violation of the require-
ments of section 3477, Revised Statutes. 6 Compt. Dec., 319. The statutes author-
izing the allotment of pay have exclusive relation to enlisted men.
326 MILITAEY LAWS OF THE UNITED STATES.
and all payments made by paymasters on account of mile-
age previous to the passage of this act shall be settled in
accordance with distance tables officially promulgated and
in use at date of payment. l Act of March 2, 1901 (31 Stat.
L., 901}.
Martr*vi9oi v ^^" Actual expenses only shall be paid to officers for
si, P. 901. sea travel when traveling, as herein provided for, to, from,
or between our island possessions.2 Act of March 8, 1901
(31 Stat. Z., 901).
1 Section 1273, Eevised Statutes, fixed the allowance of mileage at 10 cents per mile,
to be computed over the nearest post route and to be paid by the Pay Department.
The act of June 16, 1874 (18 Stat. L., 72) , discontinued mileage as a method of reim-
bursement for expenses incurred in traveling on duty, and substituted therefor the
payment of actual expenses in all cases of travel under orders. This provision was
repeated in the act of March 3, 1875 (18 Stat. L. 452). The mileage allowance was
restored and fixed at the rate of 8 cents per mile by the act of July 24, 1876 (19 Stat.
L. 97), but was not payable when actual transpo.tation had been furnished by the
Quartermaster's Department, or in a conveyance owned or chartered by the United
States, or on any railroad over which the troops and supplies of the United States
were entitled to be transported free of charge; the distance in each case was to be
computed by the shortest usually traveled route. Section 1273 was repealed by the
act of July 24, 1876, above cited. The act of March 3, 1883 (22 Stat. L.,456), contained
the requirement that mileage should be computed over the shortest usually traveled
routes between the points named in the order, and that the necessity for travel
should be certified to, in each case, in the order directing the journey. The act of
June 30, 1886 (24 Stat. L., 95), fixed the rate of mileage at 4 cents per mile, and, in
addition thereto, the cost of transportation actually paid, exclusive of sleeping and
parlor car fares. The act of February 9, 1887 (24 Stat, L., 396), contains the follow-
ing provision: " That in disbursing this amount the maximum sum to be allowed and
paid to an officer shall be four cents per mile, distance to be computed over the shortest
usually traveled routes, and, in addition thereto, upon the officer's certificate that it
was not practicable to obtain transportation from the Quartermaster's Department
the cost of the transportation actually paid by the officer over said route or routes,
exclusive of sleeping or parlor car fare and transfers: And provided further, That
when any officer so traveling shall travel in whole or in part on any railroad on which
the troops and supplies of the United States are entitled to be transported free of
charge he shall be allowed for himself only four cents per mile as a subsistence fund
for every mile necessarily traveled over any such last-named railroad. All the money
hereinbefore appropriated except the appropriation for mileage to officers when
traveling on duty without troops when authorized by law shall be disbursed and
accounted for by the Pay Department as pay of the Army, and for that purpose shall
constitute one fund," which was repeated in the acts of September 22, 1888 (25 Stat.
L., 483), March 2, 1889 (25 Stat. L., 827), June 13, 1890 (26 Stat. L., 151), February
24, 1891 (26 Stat. L., 773), July 14, 1892 (27 Stat, L., 177), and February 27, 1893.
The acts of February 12, 1895 (28 Stat. L., 657), and March 16, 1896 (29 ibid., 60),
contain the same requirements. The act of March 2, 1897 (29 ibid., 612, 614), pro-
vided that actual transportation should be furnished by the Quartermaster's Depart-
ment to officers traveling under orders, and that mileage only should be paid by the
Pay Department. The act of March 15, 1898 (30 Stat. L. , 318), contained the require-
ment that "the maximum sum to be allowed and paid to any officer of the Army
shall be seven cents per mile, distances to be computed by the shortest usually trav-
eled route." By the act of March 3, 1899 (30 Stat. L.,1068), the foregoing require-
ment was made permanent. The act of March 15, 1898, also contained the proviso
that "officers who, by reason of the decision of the accounting officers of the Treas-
ury, have been compelled to pay from their own means one-half of the cost of their
travel fare over railroads known as fifty per centum railroads shall be reimbursed
the same by the Pay Department, and paymasters against whom disallowances have
been made by the accounting officers of the Treasury, under such decision, shall
have the amount so disallowed passed to their credit.'^ For requirements of regula-
tion in respect to travel on the public business, see paragraphs 77-84 and 1472-1488,
Army regulations of 1901. See also pars. 842 to 851 post.
'2 This replaces a similar requirement in the act of March 3, 1899 (30 Stat. L., 1068) .
In conformity to a decision of the Comptroller of the Treasury -dated March 3, 1899,
MILITARY LAWS OF THE UNITED STATES. 327
842. The Secretary of War may determine what shall tJ0™vel with
constitute travel and duty without troops within the mean- ^"^ 1901> v>
of the laws governing the payment of mileage and com-
mutation of quarters to officers of the Army.1 Act of
March 2, 1901 (31 Stat. Z., 901).
843. Officers who so desire may, upon application to the inTkr^8portation
Quartermaster's Department, be furnished with transpor- 31^ag0i • 1901>Vl
tation requests, exclusive of sleeping and parlor car accom-
modations, for the entire journey under their orders; and
the transportation so furnished shall be a charge against
the officer's mileage account, to be deducted at the rate of
three cents per mile by the paymaster paying the account,
and of the amount so deducted there shall be turned over
to an authorized officer of the Quartermaster's Depart-
ment three cents per mile for transportation furnished
over any railroad which is not a free, bond-aided, or fifty
per centum land-grant railroad for the credit of the appro-
priation for transportation of the Army and its supplies.2
Act of May 26, 1900 (31 Stat. Z., 210); act of March 2,
1901(31 Stat. L., 901).
844. When the established route of travel shall, in whole r0ad°snd~aided
or in part, be over the line of any railroad on which the Ibid-
the following instructions have been promulgated by the Secretary of War in respect
to the travel allowances of officers traveling without troops "to, from, and between"
the insular possessions of the United States.
1 Under the authority conferred by the act of March 3, 1901, it has been decided
by the Secretary of War that ' ' traveling with troops, ' ' in the sense here employed,
will be regarded as covering all cases of officers included in orders for movement, in
whatever manner, of their appropriate commands or in orders for movement of
detachments, escorts, or stores which proceed by marches or by transportation
belonging to or especially hired for the purpose by the United States, the idea being
that in marches the officers should move as dp the troops and that where transpor-
tation is specially devoted to the movement it is sufficient for all included therein.
But the term will not be regarded as covering cases of officers included in the move-
ment by railroad, stage, or like established lines of conveyances; of detachments of
less than ten armed or unarmed men, such as guards and nurses for disabled or insane
officers or soldiers; recruiting parties and escorts for inspectors, paymasters, and others,
or the public funds or property in their charge, or of officers traveling on troop trains
or transports, but not ordered to report to the commanding officer nor on duty with
the troops or command on board, and such officers are not regarded as traveling with
troops within the meaning of the laws and regulations. G. 5. 43, A. G. O., 1901.
2 The full 3 cents per mile deducted from the officer's mileage account must be
turned over to the Quartermaster's Department and credited to the appropriation for
transportation of the Army and its supplies in all cases where that Department has
furnished the transportation, and this, too, without regard to the class of roads over
which the transportation has been furnished.
If transportation ia not furnished by the Quartermaster's Department its appro-
priation is not entitled to any credit.
The money turned over to an authorized officer of the Quartermaster's Depart-
ment and credited to the appropriation for transportation of the Army and its sup-
plies will be available for use to the same extent that it would be if it had been
regularly appropriated. Dec. Compt. of Treasury of July 18, 1900. Circular 28,
A. G. O. , 1900. This provision authorizes army officers, before the commencement
of a journey, under orders requiring travel without troops, to obtain actual transpor-
tation from the Quartermaster's Department, the cost of which will be deducted from
the mileage authorized to be paid under paragraph 839. For regulations in further-
ance of this requirement see G. O. 76, A. G. O., 1900.
328 MILITAEY LAWS OF THE UNITED STATES.
troops and supplies of the United States are entitled to be
transported free of charge, or over any of the bond-aided
Pacific railroads, or over any fifty per centum land-grant
railroad, officers traveling as herein provided for shall, for
the travel over such roads, be furnished with transporta-
tion requests, exclusive of sleeping and parlor car accom-
modations, by the Quartermaster's Department. Ibid.
Auction. 845. When transportation is furnished by the Quarter-
master's Department, or when the established route of
travel is over any of the railroads above specified, there
shall be deducted from the officer's mileage account by the
paymaster paying the same three cents per mile for the
distance for which transportation has been or should have
been furnished.1 Ibid.
pa?mentcof°mi?" 846< Hereafter no portion of the appropriation for mile-
s£tedDuty to be a£e to officers traveling on duty without troops shall be
28fp.g23?.' 1894' v' expended for inspections or investigations, except such
as are especially ordered by the Secretary of War, or such
as are made by army and department commanders in vis-
iting their commands, and those made by Inspector-Gen-
eral's Department in pursuance of law, army regulations,
or orders issued by the Secretary of War or the Com-
manding General of the Army; and all orders involving
the payment of mileage shall state the special duty en-
joined.2 Act of August 6, 1894 (®$ Stat. L.,
1 The act of May 26, 1900 (31 Stat. L., 210), contained the following provision:
' ' For traveling expenses and commutation of quarters for civilian physicians em-
ployed by the Surgeon-General, one thousand five hundred dollars."
2 It is a well-established fact that persons traveling on Government business are
entitled to be reimbursed for their expenses. This is done either by a mileage allow-
ance, a fixed sum as a commutation of expenses, or an itemized statement showing
actual expenses. Prior to 1874 mileage was the most usual measure of allowances.
4 Compt. Dec., 421. Mileage is a form of reimbursement, and "public business" is
the foundation on which it rests. Perrimond v. U. S., 19 Ct. Cls., 509. Allowances
for travel and subsistence are payable to officers and agents of the United States only
when they are employed at other places than their places of residence. Test v. U. S.,
ibid., 357. In fact, mileage is merely a commutation for traveling expenses. U. S.
v. Smith, 158 U. S., 350.
The mileage allowance to an officer of the Army on the active list is fixed by law,
the law in effect at the time the travel is performed and not the law in effect when
the order for the travel is issued. 1 Compt. Dec., 29.
Except in cases of emergency, the right to mileage can not be conferred by an
order issued after the journey has been performed. 4 Compt. Dec., 175. The law
and regulations requiring a specific order prior to the commencement of the journey
must be strictly complied with, and the officer must make the journey within a
reasonable time in accordance with the order to acquire a right to mileage. Ibid.
An order to travel to a designated point, perform certain duty and return, is, in
effect, two distinct orders, and the mileage allowances for each trip is fixed by the
law at the time the travel in each case was commenced. 1 Compt. Dec., 29.
It is not necessary that an order to travel should specifically designate places and
routes. It may leave them to the discretion of the officer, and the subsequent
approval of the Department will be conclusive upon the accounting officers. Billings
v. U. S., 23 Ct. Cls., 166. If public business was an element in an officer's circuity
MILITARY LAWS OF THE UNITED STATES. 329
MILEAGE TO PAYMASTERS' CLERKS AND TO THE EXPERT ACCOUNTANT
OF THE INSPECTOR-GENERAL'S DEPARTMENT.
817. That hereafter the maximum sum to be allowed pay-
masters' clerks and the expert accountant of the Inspector-
GeneraFs Department when traveling on duty shall be four .,
cents per mile, and, in addition thereto, when transporta-27'p<48°-
tion can not be furnished by the Quartermaster's Depart-
ment the cost of same actually paid by them, exclusive of
sleeping or parlor car fare and transfers. Act of February
87, 1893 (27 Stat. L., 480).
of route, he is entitled to mileage therefor; if it was not, the Government is not
answerable for the increased distance. Du Bose v. U. S., 19 Ct. Cls., 514.
Where the route is left to the discretion of the officer, his mileage should be calcu-
lated by the shortest usually traveled route, unless some good reason be shown for
deviation. Crosby v. U. S., 22 Ct. Cls., 13. 2 Compt. Dec., 544.
The question as to the shortest usually traveled route between any two points is a
question of fact, and to be determined by the best obtainable evidence. *
The time required in making the journey, the rates of fare, and the fact that an offi-
cer should be absent from his post of duty for the shortest possible period are impor-
tant elements in determining the shortest usually traveled route in any particular
case.
Evidence should accompany the voucher on which payment is made, to establish the
fact that the distance is computed by the route which, for the time and occasion, is
the shortest usually traveled route. Mileage can in no case be allowed for any dis-
tance in excess of the distance actually traveled, and if the distance actually traveled
exceed the distance by the shortest usually traveled route, mileage can be allowed
only for the distance by the shortest usually traveled route. 1 Cprnpt. Dec., 115.
The mileage of an officer of the Army is to be computed by the shortest usually
traveled route regardless of the number of miles actually traveled, unless the orders
under which he travels, or the necessities of the service (and not the mere con-
venience of the officer), require the use of a route longer than that usually traveled.
2 ibid., 544. See also 1 ibid., 118, 209; 4 ibid., 74; 5 ibid., 196.
When it appears that an army officer was directed to travel on military duty and
had no order to stop over, or delay on his journey, it must be presumed by the
accounting officers that he was directed to go by the shortest usually traveled route,
without unnecessary delay, and he will be allowed only the cost of "through limited
tickets" for such travel. The accounting officers look to the officer's orders as to
the necessity for delay en route, not questioning the authority of the War Depart-
ment to determine whether the officer's duty requires that he shall stop over on his
journey. 3 Dig. Dec., 2nd Compt., par.. 1426.
The law relating to the cost of transportation contemplates that army officers trav-
eling on duty without troops shall travel over the usually traveled routes in the mode
usually adopted and by the conveyances usually employed. The exigencies of the
service should be of an unusual character, not admitting of even the possibility of
delay, to justify the officer in engaging the more costly transportation on fast or limited
trains. Ibid., 1429.
An officer ordered home, at his own request, to await orders, is entitled to mileage
from his post to his home, such a journey constituting travel under orders. William-
son v. U. S., 23 Wall., 411; Phisterer v. U. S., 12 Ct. Cls., 98, and 94 U. S., 219.
Where an officer who has received but has not yet taken advantage of a leave of
absence is ordered to convey prisoners to another post his leave is to that extent
suspended, and he is entitled to mileage. Andrews v. U. S., 15 Ct. Cls., 264.
The Army Regulations provide that the expiration of an officer's leave of absence
must find him at his station. His station means his permanent station, not a place
to which he was temporarily ordered and at which he accepted his leave of absence.
Andrews*;. U. S., 15 Ct. Cls., 264. An officer's proper station can not be changed
by his being ordered to perform a temporary duty while on leave of absence. Ibid.
if an officer on leave of absence be ordered to temporary duty at the place where he
may happen to be, and he be kept there until after his leave of absence expires and
330 MILITARY LAWS OF THE UNITED STATES.
nmde'by payD* 848> ^11 the money hereinbefore appropriated (for pay,
paju^ee3o'i886 v travel allowances, and commutation of quarters) shall be
24, p. 95. disbursed by the Pay Department of the Army, and for
that purpose shall constitute one fund. 1 Act of June 30,
1886 (fy Stat. L.,95).
PAYMENTS OF MILEAGE TO BE MADE BY PAYMASTERS.
Dbee 849> ^° payment [of mileage] shall be made to any offi-
yTs' 1870 s cer except by a paymaster of the Army.
24, v. 16, p. 320. '
Sec. 1278, B.S.
TRAVEL PAY ON DISCHARGE.
di?chlrgepay °n 850> Hereafter when an officer shall be discharged from
3iMpar<Jo2 1901> v' ^ne service^ except by way of punishment for an offense,
&ec.i289,R.s. foQ shall receive for travel allowances from the place of his
discharge to the place of his residence at the time of his
appointment or to the place of his original muster into the
service four cents per mile; and an enlisted man when
discharged from the service, except by way of punishment
for an offense, shall receive four cents per mile from the
then be ordered to his proper station, he will not be entitled to mileage. Barr v,
U. S., 14 Ct. Cls., 272.
An officer who voluntarily quits the military service is not entitled to travel pay.
1 Compt. Dec., 370.-
An officer whose resignation, tendered on the ground of physical disability, is
accepted, becomes entitled to travel pay, provided the disability did not exist at the
time of his entering the service, or was not incurred on account of his own miscon-
duct during service. The length of service is material evidence in determining
whether the disability existed prior to entry into the service. Ibid.
1 All subsequent acts of appropriation for the support of the Army have contained
a similar provision. The acts of appropriation of May 26, 1900, and March 3, 1901,
except from the foregoing clause the appropriations for mileage of officers when
authorized by law.
While the act of March 15, 1898 (30 Stat. L., 318), does not make it the duty of
officers to use those railroads from which a benefit will accrue to the Government, it
is no doubt within the authority of the Secretary of War, by regulation, to direct
their use whenever practicable. 5 Compt. Dec., 196. An officer who actually trav-
els over any of the railroads mentioned in the act, and having failed to secure trans-
portation in kind, pays his own fare, is entitled to be reimbursed so much as it would
have cost the Government had a request been used. When an officer travels over
any of the railroads included in the act it will be presumed, in the absence of affirm-
ative evidence to the contrary, that he has been furnished with a transportation
request. Ibid. The cost of a local ticket, of the class obtained, between points for
which transportation in kind is furnished should be deducted from the mileage
allowance. Ibid.
An officer of the Army traveling under orders and using a conveyance upon which
transportation and subsistence are furnished or paid for by the Government is not
entitled to mileage. 4 Compt. Dec., 429. See also Ibid., 86.
Sleeping-car service is not a necessary incident to transportation, but must usually
be considered as lodging, yet special circumstances may appear showing a legislative
intent to include such service as a part of transportation. In ordinary cases where
subsistence is excluded from traveling expenses such exclusion must be held to cover
sleeping-car service on the ground that it is lodging and a part of subsistence. 4
Compt. Dec., 420.
The provision in the act of March 15, 1898 (30 Stat. L., 321), that the maximum
sum to be allowed and paid to "any officer of the Army" shall be 7 cents per mile
applies to all officers of the Army, including officers of the Corps of Engineers. 4
Compt. Dec., 711.
MILITARY LAWS OF THE UNITED STATES. 331
place of his discharge to the place of his enlistment, en-
rollment, or original muster into the service.1 Act of-
March 0, 1901 (31 Stat. Z., 902}.
851. For sea travel on discharge actual expenses only f§^*rave1'
shall be paid to officers and transportation and subsistence
only shall be furnished to enlisted men. Ibid.
STOPPAGES.
852. The cost of repairs or damages done to arms, equip- ar^f P J,irs to
ments, or implements shall be deducted from the pay of 7> ^p8^15'8'
any officer or soldier in whose care or use the same were sec. iso3,B.s.
when such damages occurred, if said damages were occa-
sioned by the abuse or negligence of said officer or soldier.2
1 An officer who voluntarily quits the military service is not entitled to travel pay.
1 Compt. Dec., 370.
An officer whose resignation, tendered on the ground of physical disability, is
accepted, becomes entitled to travel pay, provided the disability did not exist at the
time of his entering the service, or was not incurred on account of his own miscon-
duct during service. The length of service is material evidence in determining
whether the disability existed prior to entry into the service. Ibid.
Under section 1289 of the Revised Statutes an officer of the Volunteer Army is
entitled to travel pay from the place of his discharge to the place where he accepted
his appointment, but is not entitled to mileage on his discharge. 5 Compt. Dec., 113.
An officer or soldier who is discharged for his own convenience is not entitled to
travel pay or allowances. Ibid., 113.
An officer who is ordered to proceed to his home and is discharged, to take effect
at a subsequent date, is entitled to mileage, but not to travel pay. Ibi£L> 87. See
also ibid., 705.
Under section 1289 of the Revised Statutes, an officer of the Volunteer Army is
entitled to travel allowances from the place of his discharge to the place where he
accepted his appointment, but is not entitled to mileage on his discharge. Ibid., 113.
An order retiring an officer from active service in the Army, which contains no
direction for him to proceed to his home, can not be regarded as an order directing
him to perform the journey so as to confer a right to mileage. 4 ibid., 175.
2 The pay of an officer or soldier can not be subjected to stoppage except by the
authority of a statute or regulation specifically authorizing the same or of a sentence
of court-martial imposing a forfeiture or fine as a punishment, or where the party has
become indebted to the United States on account. In a case of supposed liability to
stoppage, resulting from a neglect or an act chargeable as a military offense, and as
to which the facts are disputed, it is in general preferable to have the case investi-
gated and the actual pecuniary liability, if any, fixed by a trial by court-martial. A
superior is not authorized to stop against the pay of an inferior the value of property
charged to have been criminally misappropriated; and it is the experience of the
Judge- Advocate-General that most or many of the cases of loss of or injury to public
property in which the facts have been investigated and the damage assessed by
boards of survey, would have been more profitably passed upon by courts-martial,
by which, instead of a stoppage, a forfeiture could have been imposed, as a punish-
ment, by sentence. Dig. Opin. J. A. Gen., 719, par. 1. See also ibid, p. 720, pars. 2,
4, 5; 721 ibid., par. 8.
By operation of law, indeed, under certain express statutory provisions, an officer's
or soldier's pay may be withheld altogether, or temporarily, or be subjected to cer-
tain charges and thus reduced. Thus, by section 1265, Revised Statutes, an officer
absent without leave forfeits all pay during the period of his absence, unless the same
be excused as unavoidable. By section 1266, an officer dropped from the rolls for an
unauthorized absence of three months is required to "forfeitall pay due or to become
due." Section 1766 prohibits the payment of his compensation to any person while
he continues "in arrears to the United States." Sections 1303 and 1304 require in
effect that the cost of damage done to arms, etc. , and the value of military stores
found deficient, shall, except where the loss is occasioned by no personal fault of the
party, be charged against the pay of the officer or soldier responsible for the damage
or deficiency. Ibid, par. 1901.
332 MILITARY LAWS OF THE UNITED STATES.
Deficiency in 853. In case of deficiency of any article of military sup-
articles of mill-
tajy i supplies, phes, on final settlements of the accounts of any officer
3, v. 4. p. 174. ' charged with the issue of the same, the value thereof shall
See 1*504- R S
' be charged against the delinquent and deducted from his
monthly pay, unless he shall show to the satisfaction of the
Secretary of War, by one or more depositions setting forth
the circumstances of the case, that said deficiency was not
occasioned by any fault on his part. And in case of dam-
age to any military supplies, the value of such damage
shall be charged against such officer and deducted from
his monthly pay, unless he shall, in like manner, show that
such damage was not occasioned by any fault on his part. l
pu^ha^ecTon **54. The amount due from any officer for rations pur-
cr|?ar 3 1865 s cnase(^ on credit, or for any article designated by the
6'7uiy328'i866 s inspectors-general of the Army and purchased on credit
^LJ'itUk'i?6^ from commissaries of subsistence, shall be deducted from
Ncc. I i';ll). If. S.
rear? cer in ar" ^ne payment made to such officer next after such purchase
2 val4 if'2468' c' s^a^ have been reported to the Paymaster-General.
77M^y52p ^i36' c' 855. No money shall be paid to any person for his com-
s'ec. 1766, B.S. pensation who is in arrears2 to the United States until he
1 The power given to the Secretary of War to order a stoppage of pay against a
delinquent officer is exclusive and discretionary, but is not to be asserted against an
officer acting under an order which he is bound to obey, and as to which he is
expressly relieved from personal liability. Such an abuse of power would not tend
to preserve but to subvert military order and discipline. The refusal of the Secretary
of War to stop an officer's pay is not a decision upon the merits; it will not bind the
Government nor preclude the Comptroller from causing a suit to be brought against
the officer; it merely determines that the officer is so far without fault that the harsh
and summary remedy of stopping his pay should not be resorted to. Smith v. U. S.,
24 Ct. Cls., 209, 215; Billings v. U. S., 23 ibid., 166,175.
Where a paymaster receives no notice of stoppage and innocently pays an officer,
the overpayment must be recovered from the officer. Smith v. U. S., 23 Ct. Cls., 452.
When an officer has been overpaid, or is indebted to the United States for money
or property, or has failed properly to account for the same, the chief of the bureau
concerned will promptly notify him of the amoun* of his indebtedness, or his failure
to account. If after such notice he does not refund, or make satisfactory explana-
tion, or take proper action within a reasonable time, the matter will be reported to
the Secretary of War. Par. 1497, A. R, 1901.
On the order of the Secretary of War, stoppages may be made against the pay of
officers for overpayments, illegal disbursement, or loss through fraud or neglect of
the public funds, and for deficiencies in, loss of, or damage to, military supplies,
unless proof be furnished that the deficiency, loss, or damage was not occasioned by
any fault on their part. Par. 1498, ibid.
The notice of stoppage of officers' pay will be prepared in the form of a monthly
circular to paymasters, advising them of stoppages outstanding at its date. This
circular will be submitted to the Secretary of War for his approval prior to its publi-
cation. When an officer's name is borne thereon, no payment of salary will be made
to him which is not in accordance with the stoppage entry made against his name.
Par. 1499, ibid.
Overpayments to an officer will be deducted on the first payment after a notice of
stoppage against him is received, even if the pay accounts have been assigned. Par.
1500, ibid.
2 Persons in "arrears," are only such, as having previous transactions of a pecun-
iary nature with the Government, are found, upon the settlement of these trans-
actions, to be in arrears to it. Ill Opin. Att. Gen., 52. This section only applies to
cases in which the party who claims compensation is liable to the United States.
Hedrick v. U. S., 16 Ct. Cls., 88.
MILITARY LAWS OF THE UNITED STATES. 333
has accounted for and paid into the Treasury all sums for
which he may be liable. In all cases where the pay or
salary of any person is withheld in pursuance of this sec-
tion, the accounting officers of the Treasury, if required
to do so by the party, his agent or attorney, shall report
forthwith to the Solicitor of the Treasury the balance due;
and the Solicitor shall, within sixty days thereafter, order
suit to be commenced against such delinquent and his
sureties.
856. The pay of officers of the Army may be withheld 0£^ayding
under section seventeen hundred and sixty-six of the 27Jplyi77' 18^2' v'
Revised Statutes on account of an indebtedness to the Sec- 1766> B> s-
United States admitted or shown by the judgment of a
court, but not otherwise, unless upon a special order issued
according to the discretion of the Secretary of War.1 Act
of July 16, 1892 (27 Stat. L., 177).
PAY OF HOSPITAL MATRONS AND FEMALE NURSES.
857. Hospital matrons in post or regimental hospitals Mar^isrc v
shall receive ten dollars a month * * *. iJlf&^ii
July 4, 1864, v. 13,p. 416. 18g£i $£ ILS .'
858. The Nurse Corps shall consist of one superintend- J^perintend-
ent, * * * whose compensation shall be one thousand
eight hundred dollars per annum. Sec. 19, act of February i9Fv.b3of pS. 8'
0, 1901(31 Stat. L., 153).
859. The pav and allowances of nurses and reserve Nurses, reserve
nurses.
nurses, when on active service, shall be forty dollars per iw»
month when on duty in the United States, and fifty dollars
per month when without the limits of the United States.
lUd.
860. When serving as chief nurses, their pay may be chief nurc*.
increased by authority of the Secretary of War, such in-
crease not to exceed twenty-five dollars per month. Ibid.
861. Payments to the Nurse Corps shall be made by the Paym its.
Pay Department. Ibid.
lrThe Army appropriation act of June 16, 1892, provides that ''the pay of officers
of the Army may be withheld under section 1766, R. S., on account of an indebtedness
to the United States admitted or shown by the judgment of a court, but not other-
wise, unless upon a special order issued according to the direction of the Secretary
of War. ' ' Held, that the last part of this provision was to be construed not separately
but in connection with the former, and could not be interpreted as empowering the
Secretary of War to stop the pay of officers of the Army to satisfy private debts
or claim for alimony. Dig. Opin. J. A. G., par. 2383.
334
MILITAKY LAWS OF THE UNITED STATES.
PAY OF ENLISTED MEN.
Par.
862. Rates of pay.
863. The same, chief musicians.
864. The same, Indian scouts.
865. Increased pay, time of war.
866. The same, foreign service.
867. Retained pay, prohibition.
868. Reenlistment pay.
869-870. Continuous service pay.
871-874. Allotments of pay.
875. The same, credits.
876. Retired enlisted men.
Par.
877. The same, credit for service.
878. The same, allowances.
878a Pay of volunteers and militia.
879-881. Deposits.
882. The same, payment.
883. Certificates of merit.
884. Pay during absence, furloughs.
885. The same, absence without leave.
886. Pay during captivity.
887. Travel pay at discharge.
888. The same, sea travel.
^pay of enlisted g^ The monthly pay of the following enlisted men of
I2?asr'53'v8i5' p' ^e Army shall, during their first term of enlistment, be
81Mayi5 1872 c as f°M°ws5 w^h the contingent conditions thereto, herein-
iie: s' 3 ^Aug i' a^ ter provided :
Mat' 2i899Pv23o; Sergeant-majors and quartermaster-sergeants1 of cav-
P's9e7c'i279 R s. a^ry an(^ infantry2 and electrician-sergeants of artillery,
sec.i280,R.s. thirt}r-four dollars.3
Sergeant-majors of artillery and infantry, twenty-three
dollars.
Regimental quartermaster and commissary-sergeants of
cavalry and infantry, twenty -three dollars.*
Drum-majors of cavalry, artillery, and infantry, twenty-
five dollars.5
Chief trumpeters of cavalry, twenty -two dollars.
Principal musicians of artillery and infantry, twenty-
two dollars.
Saddler-sergeants of cavalry, twenty-two dollars.
Squadron sergeant-majors of cavalry, battalion sergeant-
majors of infantry, and color-sergeants of cavalry and
infantry, twenty -five dollars.6
First sergeants of cavalry, artillery, and infantry,
twenty-five dollars.7
Sergeants7 and company quartermaster-sergeants of
Section 2, act of March 2, 1899 (30 Stat. L., 978).
2 Act of May 26, 1900 (31 ibid., 208).
3 Section 3, act of March 2, 1899 (30 ibid., 978); see, also, 5 Compt. Dec., 761.
4 Sections 2, 3, and 4 ibid.
5 Ibid. In sections 2, 3, and 4 of the act of March 2, 1899 (30 Stat. L., 977), the
words "who shall have the rank, pay, and allowances of a first sergeant" relate to
the drum major only, and not to the' chief musicians, chief trumpeters, and principal
musicians, whose pay and allowances remain the same as under the prior laws.
5 Compt. Dec., 761.
6 Sections 2 and 4 ibid.
7 Act of February 27, 1893 (27 Stat, L. , 478) . Held, that the Army appropiation act
of February 27, 1893, in changing and fixing the pay of first sergeants and sergeants,
had reference to those of the line of the Army, and did not include sergeants of the
Engineer or Ordnance Corps. Dig. Opin.J. A. G., par. 1929.
MILITARY LAWS OF THE UNITED STATES. 335
cavalry, artillery, and infantry, and mechanics of artil-
lery, eighteen dollars.1
Corporals of cavalry and light artillery, fifteen dollars.
Corporals of artillery and infantry, fifteen dollars.
Saddlers of cavalry, fifteen dollars.
Blacksmiths and farriers of cavalry, fifteen dollars.
Trumpeters of cavalry, thirteen dollars.
Musicians of artillery and infantry, thirteen dollars.
Privates of cavalry, artillery, and infantry, thirteen
dollars.
Company cooks of cavalry, artillery, infantry, engi-
neers, and the Signal Corps, eighteen dollars.2
Hospital stewards, first class, forty-five dollars.3
[Acting hospital stewards, twenty-five dollars.]3
[Privates of the Hospital Corps, eighteen dollars.] 3
Ordnance-sergeants of posts, post commissary* and
quartermaster-sergeants,4 thirty-four dollars.
Sergeant-majors of engineers, thirty-six dollars.
Quartermaster-sergeants of engineers, thirty -six dollars.
Sergents of engineers and ordnance, thirty-four dollars.
Corporals of engineers and ordnance, twenty dollars.
Musicians of engineers, thirteen dollars.
Privates (first class) of engineers, ordnance, and Signal
Corps,5 seventeen dollars.
Privates (second class) of engineers, ordnance, and Signal
Corps,5 thirteen dollars.
[Sergeants (first class) of the Signal Corps, forty-five
dollars.]6
[Sergeants (second class) of the Signal Corps, thirty -
four dollars.]
[First-class gunners, artillery corps, two dollars per
1 Section 3, act of March 2, 1899 (30 Stat. L., 978) .
2 Section 9 ibid.
3 The monthly pay of hospital stewards fixed at $45, and that of acting hospital
stewards at $25, by the act of March 1, 1887 (24 Stat, L., 435). The pay of privates
of the Hospital Corps was fixed at $18 per month by the act of July 13, 1892 (27 Stat.
L. , 1 20) .
4 The monthly pay of post commissary-sergeants was fixed at $34 by the act of
March 3, 1873 (17 Stat. L., 485), and that of post quartermaster-sergeants at the same
rate by the act of July 5, 1884 (23 Stat, L., 107).
5 The pay of sergeants of the first class in the Signal Corps was fixed at $45 per
month by the act of October 1, 1890 (26 Stat. L., 653) . The pay of sergeants of the
second class in the Signal Corps was fixed at $34 per month by the act of June 20,
1878 (20 Stat. L., 219).
The enlisted men of the Army Service Corps, stationed at the Military Academy,
receive the same pay and allowances as enlisted men of corresponding grades in the
artillery. Act of June 20, 1890 (26 Stat. L. , 653) . See the chapters entitled ENLISTED
MEN and THE MILITARY ACADEMY.
6 The pay of first and second class privates of the Signal Corps was fixed by section
3, act of April 26, 1898 (30 Stat. L., 364).
336 MILITARY LAWS OF THE UNITED STATES.
month in addition to their pay; second-class gunners, one
dollar per month in addition to their pay.] l
Artificers, cavalry, artillery, and infantry, fifteen dollars.
Wagoners, cavalry, artillery, and infantry, fourteen
dollars.
ADDITIONAL PAY.
payday 15° &721 863. To the rates of pay stated in the preceding section
s' Mareh?if iSej one Collar per month shall be added for the third year of
v'secA28i,B.s. enlistment, one dollar more per month for the fourth year,
and one dollar more per month for the fifth year, making
in all three dollars' increase per month for the last year
of the first enlistment of each enlisted man named in said
section.2
muScians.chief 864. The chief musicians of regiments shall receive sixty
i8M,Cv.328Apg2i6! dollars a month and the allowances of a quartermaster-
sergeant.3
scouts! Tanown 865> Indians, enlisted or employed by order of the Pres-
aijuiyf28 ?866Mc' ident as scouts, shall receive the pay and allowances of
333'- Augl'21i876'cava'lry soldiers. That so much of the army appropria-
v s£A2736,'B.s. ti°n act of twenty-fourth July, eighteen hundred and sev-
enty-six, as limits the number of Indian scouts to three
hundred is hereby repealed; and sections ten hundred and
ninety-four and eleven hundred and twelve of the Revised
Statutes, authorizing the employment of one thousand
Indian scouts, are hereby continued in force: Provided,
That a proportionate number of noncommissioned officers
may be appointed. And the scouts, when they furnish
their own horses and horse equipments, shall be entitled
to receive forty cents per day for their use and risk so
long as thus employed. Act of August 12, 1876 (19 Stat.
L.,131}.
1 The additional pay of gunners was fixed by section 7, act of February 2, 1901
(31 ibid., 749).
2 It was provided by the act of May 15, 1872 (17 Stat. L., 116), that this increase
should be considered as retained pay, and should not be paid to the soldier until
his discharge from the service, and should be forfeited unless his service was honest
and faithful to the date of discharge. By the act of March 16, 1896 (29 Stat. L., 60),
it was enacted that thereafter no pay should be retained.
3 By the terms of section 3, act of August 1, 1894 (28 Stat L., 216), chief musicians,
artificers, and wagoners theretofore excluded from the benefits of the act of May 15,
1872 (paragraphs 643, 644 post), became entitled to said benefits.
PAY OF ENLISTED MEN IN CONFINEMENT BY CIVIL AUTHORITY.
In view of the "pay status of (officers and) enlisted men withdrawn from duty by
arrest and confinement by the civil authorities," as established by par. 1464, A. R.,
1901 — held that an enlisted man had no claim for his pay for a period during which
he was detained by the civil authorities in arrest and for trial, although his offense
was shown to have been a slight one and he was convicted of an offense of much less
gravity than that with which he was charged.
MILITAEY LAWS OF THE UNITED STATES. 337
WAR INCREASE — INCREASE FOR FOREIGN SERVICE.
866. In time of war the pay proper of enlisted men shall J£
be increased twenty per centum over and above the rates & 6> v- ^ p- 262»
of pay as fixed by law.1 Sec. 6, act of April 26, 1898 (30
Stat. «£., 26%).
867. Hereafter the pay proper of all * * * enlisted icf oreign serv'
men serving beyond the limits of the States comprising 31^ar<^23' 1901} y<
the Union, and the Territories of the United States con-
tiguous thereto, shall be increased * * * twenty per
centum for enlisted men over and above the rates of pay
proper as fixed by law for time of peace, and the time of
such service shall be counted from the date of departure
from said States to the date of return thereto.2 Act of
March 2, 1901 (31 Stat. Z., 903).
RETAINED PAY.3
867a. Hereafter no pay shall be retained; but this pro- NO pay to be re-
vision shall not apply to deductions authorized on account Mar. ie, 18%, v
19 T> 50
of the Soldiers' Home. Act of March 16, 1896 (29 Stat.
!>., 60).
llt has been decided by the Comptroller of the Treasury that the increase of 20
per cent authorized by section 6 of the act of April 26, 1898, is to be computed upon
the minimum rates of pay, or pay proper, allowed by law to the several grades of
enlisted men. All increases in or additions to the pay of enlisted men, as for
reenlistment, length of service, certificates of merit, and the like are to be excluded
from the computation. 4 Compt. Dec., 668.
aThis enactment replaces a requirement in pari materia which was contained in the
act of May 26, 1900 (31 Stat. L., 211 ). The act of March 3, 1901, also contains a pro-
vision that ' ' the officers and enlisted men who have served in China at any time
since the twenty-sixth day of May, nineteen hundred, shall be allowed and paid for
such service the same increase of pay proper as is herein provided for. ' ' The statute
last named also contains the requirement that ' ' enlistments in the Regular Army on
and after April twenty-first, eighteen hundred and ninety-eight, from which date
war was declared to have existed between the United States and Spain, up to and
including April twenty-sixth, eighteen hundred and ninety-eight, shall be deemed
enlistments for the war with Spain, and shall entitle men so enlisting to the extra
pay and on the same conditions granted to men who enlisted in the Regular Army
subsequent to the declaration of war, for the war onlv, as provided by an act approved
March third, eighteen hundred and ninety -nine, entitled "An act making appropria-
tions for the support of the Regular and Volunteer Army for the fiscal year ending
June thirtieth, nineteen hundred."
3 By the acts of May 15, 1872 (17 Stat. L., 116, sec. 1281, Revised Statutes), and
June 16, 1890 (26 ibid., 157), certain portions of the monthly pay of enlisted men
were retained by the United States. The sums so retained were paid to the soldier
at discharge, with interest at the rate of 4 per cent per annum from the several dates
of retention, provided the service of the soldier had been honest and faithful, and the
Secretary of War was authorized to determine what misconduct on the part of the
soldier should " constitute a failure to render honest and faithful service" within the
meaning of the statute. It was provided, however, that ' ' no soldier who has deserted
at any time during the term of an enlistment shall be deemed to have served such
term honestly and faithfully" (26 Stat. L., 157). The practice of retaining pay was
discontinued as to enlisted men in the first year of their enlistments by the act of
February 12, 1895 (28 Stat. L., 654), and as to enlisted men generally by the act of
March 16, 1896 (29 Stat. L., 60). Since March 16, 1896, the several statutes respect-
22924—08 22
338 MILITARY LAWS OF THE UNITED STATES.
REENLISTMENT AND CONTINUOUS SERVICE PAY.
Payeenlistment 868- AH enlisted men mentioned in section twelve hun-
8!?' p' dred an(i eighty ^ who, having been honorably discharged
.'ife ^ave reenlisted or shall reenlist within three months there-
uf^'1894' after, shall, after five years' service, including their first
sec. 1282, B. s. enlistment, be paid at the rate allowed in said section to
those serving in the fifth year of their first enlistment.1
Act of August 1, 1894 (%8 Stat. Z., 215).
continuous 869. Every soldier who, having been honorably dis-
Reenhstment. charged, reenlists within three months thereafter, shall be
247, 8^2, 'v-5 !<>£,?• further entitled, after five years' service, including his first
ii7^°Au4' Vis'o?' en^s^men^' ^° receiye» ^or ^ne Period of five years next
5-S thereafter, two dollars per month in addition to the ordi-
nary pay of his grade; and for each successive period of
five years of service, so long as he shall' remain continu-
ously in the Army, a further sum of one dollar per month.
The past continuous service of soldiers now in the Army
shall be taken into account, and shall entitle such soldier
to additional pay according to this rule; but services ren-
dered prior to August fourth, eighteen hundred and fifty-
four, shall in no case be accounted as more than one
enlistment. 2
ede?odthtr1ee ®^' ^e P^od within which soldiers may reenlist
months. with the benefits conferred by sections twelve hundred and
R S SGCS 1282
^.amended. i eighty -two and twelve hundred and eighty-four 3 of the
Additional & . .
pay- Revised Statutes, be, and the same is hereby, extended to
3, v. 28, p.' 215. ' 'three months; and hereafter every enlisted man in the
Army, excepting general service clerks and general service
messengers, shall be entitled to all the benefits conferred
by sections twelve hundred and eighty-one4 and twelve
ing the retention of pay of enlisted men have applied only in the settlement of the
accounts in cases where retained pay had accrued prior to the passage of the act of
March 16, 1896. (a)
1 The authority to retain pay conferred by section 1281, Revised Statutes (para-
graph 639, ante), was withdrawn as to all enlisted men by the act of March 16, 1896
(29 Stat. L., p. 60) . See par. 642, ante.
2 The right of a soldier, under section 1284 of the Revised Statutes, to $1 per month
additional pay for ten years' service does not depend merely upon the ten years'
service, but upon an honorable discharge and a second reenlistment. The increase
can be allowed only for services rendered after the enlistment, and the principle
applies to subsequent reenlistments. 1 Compt. Dec., 459; 3 Dig. Dec. 2d Compt,,
967; Webb t\ U. S., 23 Ct. Cls., 58. By section 1286, Revised Statutes, $2 per
month additional pay was allowed to certain noncommissioned officers who served
in the war with Mexico.
'Paragraphs 868 and 869, ante.
^Paragraph 863, ante.
a Retained pay is authorized by law. The Secretary of War has no control over it. He only deter-
mines whether the service has been honest and faithful. The operation of the law follows imme-
diately upon his decision, and either vests in the soldier the right to receive the pay or deprives him
of it, according to the character of the service he has rendered. 3 Dig. 2d Compt. Dec., 231.
Under the act of June 16, 1890, the accounting officers have no jurisdiction to review a decision of
the Secretary of War that a soldier did not serve honestly and faithfully. 3 Compt. Dec., 557.
MILITARY LAWS OF THE UNITED STATES. 339
hundred and eighty-two1 of the Revised Statutes:
vided, That to entitle them to the additional pay author-
ized by section twelve hundred and eighty-one,2 for men
serving in the third, fourth, and fifth years, the service
must have been continuous within the meaning of this
section.2 Sec. 3, act of August 1, 1894 (28 Stat. L., 2 IS).
ALLOTMENTS OF PAY BY ENLISTED MEN.
871. The Secretary of War is hereby authorized to per- Allotments of
» » p&y by enlisted
mit enlisted men of the United States Army to make allot- men.
JMfl.r. 2, lo"", s.
ments of their pay, under such regulations as he may 16> v. so, p. 98i.
prescribe, for the support of their families or relatives,
for their own savings, or for other purposes, during such
time as they may be absent on distant duty, or under other
circumstances warranting such action.3 Sec. 16, act of
March 0, 1889 (30 Stat. Z., 981}.
872. All allotments of pay of enlisted men of the United mSitforallot-
States Army, under section sixteen of act of Congress 31Mjfy2oo' 1900' v<
approved March second, eighteen hundred and ninety-nine,
that have been or shall be paid to the designated allottees
after the expiration of one month subsequent to the month in
which said allotments accrued shall pass to the credit of the
disbursing officer who has made or shall make such payment:
Provided, That said disbursing officer shall, before mak-
ing payment of said allotments, use, or shall have used,
1 Paragraphs 868 and 869, ante.
2 Page 863, ante. Section 1283, Revised Statutes, contains the provision that enlisted
men, now in the service, shall receive the rates of pay established in this chapter
according to the length of their service.
The act of February 27, 1893 (27 Stat. L., 478), which prohibited the reenlistment of
privates of over ten years' service or who were over 35 years old, except such as had
served as enlisted men for twenty years or upward, was repealed by the act of August
1, 1894 (28 Stat. L., 215), and the provisions of section 1284, Revised Statutes, were
extended to all enlisted men in the Army, except general-service clerks and messen-
gers. See also pars. 1528, 1529, and 1530, A. R., 1901.
Held that the additional pay upon reenlistment accorded to soldiers by section
1284, Revised Statutes, was intended as a compensation for long and continued mili-
tary service, without reference to the kind of service or the corps in which it was
rendered; and therefore that, where this additional pay had once begun to accrue to
a soldier by reason of his having entered, in accordance with the provisions of the
section, upon a second term of five years' service in the infantry, his continued right
to the same was not interrupted by his being discharged from 'the infantry and (on
the next day) enlisted in the Ordnance Corps. Dig. Opin. J. A. G., par. 1911.
m A soldier who reenlisted more than three months after the expiration of his pre-
vious term of enlistment is not entitled to the additional pay provided by section
1281, Revised Statutes, as amended by section 3 of the act of August 1, 1894, for reen-
listmg within three months, notwithstanding that, by reason of sickness, his reen-
listment was antedated, by direction of the Major-General Commanding the Army,
so as to bring it within the limitation of three months; nor to regular pay prior to
his actual reenlistment. 6 Compt. Dec., 754.
3 Under section 16 of the act of March, 1899, which authorizes the Secretary of
War to permit enlisted men of the Army to make allotments of their pay, payment
in advance, or without evidence that the soldier is entitled to the amount allotted
at the time the payment is to be made, is not authorized. 6 Compt. Dec., 252.
340
MILITARY LAWS OF THE UNITED STATES.
31, p. 8%.
due diligence in obtaining and making use of all informa-
tion that may have been received in the War Department
relative to the grantors of the allotments: And provided
further, That if an erroneous payment is made because of
the failure of an officer responsible for such report to
report, in the manner prescribed by the Secretary of War,
the death of a grantor or any fact which renders the allot-
ment not payable, then the amount of such erroneous pay-
ment shall be collected by the Paymaster-General from
the officer who fails to make such report, if such collection
is practicable. Act of May 26, 1900 (31 Stat. Z., 206).
873> Hereafter all allotments of pay of enlisted men of
t^ United States Army, under section sixteen of act of
Congress approved March second, eighteen hundred and
ninety-nine, that have been or shall be paid to the desig-
nated allottees, after the expiration of one month subse-
quent to the month in which said allotments accrued, shall
pass to the credit of the disbursing officer who has made
or shall make such payment. Act of March 2, 1901 (31
Stat. Z., 896).
874. Said disbursing officer shall, before making pay-
ment of said allotments, use, or shall have used, due dili-
gence in obtaining and making use of all information that
may have been received in the War Department relative
to the grantors of the allotments. Ibid.
®^* ^ an erroneous payment is made because of the
failure of an officer responsible for such report to report,
in the manner prescribed by the Secretary of War, the
death of a grantor or any fact which renders the allot-
ment not payable, then the amount of such erroneous
payment shall be collected by the Paymaster-General
from the officer who fails to make such report, if such
collection is practicable.1 Tbid.
PAY OF RETIRED ENLISTED MEN.
ii8?edmen d en ^76. That when an enlisted man has served as such
how%rompuvtede; thirty Jears in tne United States Army or Marine Corps,
lept/so fi890, v'. eitner as private or noncommissioned officer, or both, he
1^16' snaH? by application to the President, be placed on the
retired list hereby created, with the rank held by him at
the date of retirement, and he shall receive thereafter
^or requirements of regulations in respect to allotments of pay by enlisted men,
and payments of the same to the designated allottees, see paragraphs 1531 to 1544,
Army-Regulations of 1901. Under the authority conferred by the above statutes
the privilege of making allotments of pay is restricted to enlisted men and does not
extend to commissioned officers.
The same.
ibid.
menteneonspay
ibid.
MILITARY LAWS OF THE UNITED STATES. 341
seventy-five per centum of the pay and allowances of the
rank upon which he was retired: Provided, That if said
enlisted man had war service with the Army in the field,
or in the Navy or Marine Corps in active service, either as
volunteer or regular, during the war of the rebellion, such
war service shall be computed as double time in computing
the thirty years necessary to entitled him to be retired.1
Act of September 30, 1890 (26 Stat. Z., 504).
877. Hereafter in computing length of service for retire- e^^}^ for"
ment, credit shall be given the soldier for double the time 31Mpy20g' 1900) v-
of his actual service in Porto Rico, Cuba, or in the Philip-
pine Islands. Act of May 86, 1900 (31 Stat. Z., 809).
878. Hereafter a monthly allowance of nine dollars and retoiTTnSte°d
fifty cents be granted in lieu of the allowance for subsist- mg^r lg 18% y
ence and clothing.2 Act of March 16, 1896 (29 Stat L.,62). 29>P-62- '
PAY OF VOLUNTEERS AND MILITIA.
878a. All officers and enlisted men of the Volunteer
Army, and of the militia of the States when in the service of
•/ 7
the United States, shall be in all respects on the same foot-
ing as to pay, allowances, and pensions as that of officers
and enlisted men of corresponding grades in the Regular
Army.3 Sec. 12, act of April 22, 1898 (30 Stat. Z., 363).
DEPOSITS.
879. Any enlisted man of the Army may deposit his
savings, in sums not less than five dollars, with any army 16
paymaster, who shall furnish him a deposit book, in which y17
shall be entered the name of the paymaster and of the sec.iso5,B.s.
soldier, and the amount, date, and place of such deposit.
The money so deposited shall be accounted for in the same
manner as other public funds, and shall pass to the credit
of the appropriation for the pay of the Army, and shall
not be subject to forfeiture by sentence of court-martial,
but shall be forfeited by desertion, and shall not be per-
mitted to be paid until final payment on discharge, or to
1 This statute replaces the act of February 14, 1885 (23 Stat. L., 305), on the same
subject.
2 See also the title Retirement of Enlisted Men in the chapter entitled ENLISTED MEN.
Under the act of February 14, 1885 (23 Stat. L., 305), and the act of September 30,
1890 (26 ibid., 504) , providing that a hospital steward shall be retired on 75 per cent
of the pay and allowances of the rank upon which he was retired, the steward is not
entitled to commutation for fuel and quarters, but he is entitled to three-fourths of
his entire personal pay, including clothing and subsistence. Lander v. U. S., 30 Ct.
Cls.,311.
The increase of 20 per cent authorized in the pay of enlisted men in time of war
does not apply to enlisted men on the retired list. 6 Compt. Dec., 182.
8 This enactment replaces section 1292, Revised Statutes, in pari materia.
342 MILITARY LAWS OF THE UNITED STATES.
the heirs or representatives of a deceased soldier, and that
such deposit be exempt from liability for such soldier's
debts: Provided, That the Government shall be liable for
the amount deposited to the person so depositing the
1SS rest °n de 8WX For any sums not less than five dollars so deposited
16ftyVi72>p f°r tne period of six months or longer, the soldier, on his
ns'ec i306,B.s. final discharge, shall be paid interest at the rate of four
per centum per annum.2
881- Tne system of deposits herein established shall be
r"ed mto execution under such regulations as may be
established by the Secretary of War.3
117.' 'Sec.i307,R.S.
mentposion Pd£ 882' Tbe amounts of deposits * * * accumulated
to tne soldier's credit under section thirteen hundred and
fiye5 shall, when payable to him on discharge, be paid out
of the appropriations for "Pay of the Army" for the
then current fiscal year.
CERTIFICATES OF MERIT.
Certificate of 883. A certificate of merit granted to an enlisted man
Feb'^2. 1891> v- for distinguished service shall entitle him, from the date
sec.i285,B.s. of such service, to additional pay at the rate of two dol-
lars per month while he is in the military service,
although such service may not be continuous. Sec. 2, act
of February 9, 1891 (86 Stat. Z., 737).
PAY DURING ABSENCE.
^EieventKrticie ®84. Every officer commanding a regiment or an inde-
of war. pendent troop, battery, or company, not in the field, may,
when actually quartered with such command, grant fur-
act of June 16, 1890 (26 Stat. L., 157), contains the requirement that the
sums retained from the monthly pay of enlisted men under sections 1281 and 1282,
Revised Statutes, shall be treated as deposits upon which interest shall be paid in
accordance with sections 1305, 1306, 1307, and 1308, Revised Statutes.
2 Amended by the act of March 3, 1883 (22 Stat. L., 456), so as to authorize the
deposit, at interest, of sums not less than $5 in amount.
3 For regulations respecting deposits, see paragraphs 1371-1378, Armv Regulations
of 1895.
Held, under section 1306, Revised Statutes, that a soldier, having savings on
deposit as authorized bv section 1305, Revised Statutes, was not entitled to interest
on the same after the elate of the approval of a sentence imposing upon him a dis-
honorable discharge; although such discharge, by reason of the soldier being sub-
jected to a term of confinement adjudged by the same sentence, was not delivered
personally to the soldier but to the commanding officer to retain in trust for him
pending his confinement, Dig. Opin. J. A. G., par. 1052.
Section 1305, Revised Statutes, provides for the deposit by an enlisted man of
his savings with a paymaster, to be paid over to him upon discharge. Held that this
statute provided for voluntary deposits only ; and that an officer, however laudable
his motive, was not legally authorized in thus depositing, against the will of a soldier,
certain money in his hands belonging to the latter. Ibid., par. 1913.
MILITAEY LAWS OF THE UNITED STATES. 343
loughs to the enlisted men in such numbers and for such
time as he shall deem consistent with the good of the
service. Every officer commanding a regiment, or an in-
dependent troop, battery, or company, in the field, may
grant furloughs, not exceeding thirty days at one time, to
five per centum of the enlisted men for good conduct in
the line of duty, but subject to the approval of the com-
mander of the forces of which said enlisted men form a
part. Every company officer of a regiment, commanding
any troop, battery, or company not in the field, or com-
manding in any garrison, fort, post, or barrack, may, in
the absence of his field officer, grant furloughs to the en-
listed men, for a time not exceeding twenty days in six
months, and not to more than two persons to be absent at
the same time.1 Eleventh Article of War.
885. Any soldier who absents himself from his troop, ot£^^ce with"
battery, or company, or detachment, without leave f rorn
his commanding officer, shall be punished as a court-
martial may direct. 2 Thirty -second Article of War.
1 For instructions in respect to the issue of furloughs see paragraphs 116-124, Army
Regulations, 1901. Enlisted men on furlough suffer no deduction of pay in conse-
quence of their authorized absence. They are paid on their return to duty, and can
only be paid, while absent on furlough, with the authority of the Secretary of War.
2 An enlisted man who has absented himself from his post or company without
authority is subjected to the forfeiture of pay and allowances prescribed by paragraph
144 of the Army Regulations of 1901, although not brought to trial for his absence as
an offense. The forfeiture is a stoppage by operation of law, irrespective of any pun-
ishment that may be imposed, and whether any be imposed or not. Thus a soldier
acquitted under a charge of desertion is acquitted of the absence without leave
involved in the charge, and can not be punished therefor; but, if he has been absent
without leave in fact, he incurs the forfeiture specified in the regulation. And a sol-
dier brought to trial for, and convicted of, an absence without leave is subject to the
forfeiture, though none be adjudged in the sentence. Otherwise, however, if the find-
ings be disapproved as not sustained by the testimony. But the stoppage incurred
under paragraph 137, Army Regulations of 1901, is enforced only upon a conviction
by court-martial. Dig. Opin. J. A. G., 140, par. 3; see also pars. 137 and 144, 1556,
1557, and 1558, Army Regulations of 1901.
The forfeiture specified in paragraph 133, Army Regulations of 1895, should not be
enforced for absences of less than one day, but the soldier should be left to be pun-
ished by sentence of summary court. Thus where the unauthorized absence was for
but seven and a; half hours a" forfeiture of a day's pay would deprive the soldier of
pay for sixteen and a half hours which he had actually earned. Held, therefore,
that a stoppage of one day's pay in such a case was not warranted. Ibid., 141,
par. 4.
In paragraphs 144, 1557 and 1558, Army Regulations of 1901, it is directed that no
enlisted man shall receive pay or allowances for any time during which he has been
absent without leave (unless he shall furnish to his commanding officer a satisfactory
excuse for such absence), and, further, that a deserter shall forfeitall pay and allow-
ances due him at the time of his desertion. These forfeitures are incurred by operation
of law, upon the commission of the offense, independently of any punishment for the
same by sentence of court-martial, and it is not essential to their taking effect that
the offense should have been found by a military court. In general, however, they
can not safely be enforced in the absence of an ascertainment of the guilt of the party
by a trial and conviction. Only such pay is affected by these regulations as is
expressly specified therein. Thus a deserter forfeits both pay due at the time of his
offense and pay for the period of his unauthorized absence, so that, upon his appre-
hension or surrender, nothing whatever is due him. But here the forfeiture by opera-
344 MILITARY LAWS OF THE UIHTED STATES.
tivftyduringcap" 886< Every noncommissioned officer and private of the
37Msari4°'v834'p' Regular Army, and every officer, noncommissioned offi-
1 sec. 1288, R. s. cer? an(^ Private of any militia or volunteer corps in the
service of the United States who is captured by the enemy,
shall be entitled to receive during his captivity, notwith-
standing the expiration of his term of service, the same
pay, subsistence, and allowance to which he may be en-
titled while in the actual service of the United States; but
this provision shall not be construed to entitle any prisoner
of war of such militia corps to any pay or compensation
after the date of his parole, except the traveling expenses
allowed by law.
TRAVEL PAY ON DISCHARGE.
dJchI?gepay °n 887- Hereafter an enlisted man when discharged from
3ifpa.y2ii! 19°°' v'the service, except by way of punishment for an offense,
shall receive four cents per mile from the place of his
discharge to the place of his enlistment, enrollment, or
original muster into the service,1 Act of May £6, 1900
(31 Stat. L.,211}.
Sea travel. 888. For sea travel on discharge actual expenses only
31, p. '902. 'shall be paid to officers, and transportation and subsistence
tion of law ends; from this date his pay begins to run anew; and unless his sentence
(in the case of his trial and conviction) includes a forfeiture of pay due he will be
entitled to his pay (less any legal stoppages or deductions) from such date (which
is considered to be that of his return to service) to the date of his discharge, whether
this be a dishonorable discharge adjudged by the sentence and executed forthwith,
or — the sentence not imposing such punishment — an honorable discharge given him
in the usual manner after a further period of service. Paragraph 140, indeed, provides
that this pay shall not be rendered to him prior to trial, but it does not affect his
right to receive it when the trial is completed, and it is found not to be forfeited by
the sentence of the court.
An officer or soldier brought to trial for desertion or absence without leave, and
acquitted, can not of course be subjected to any of these forfeitures; norcan one who
has been convicted but whose conviction has been disapproved by the competent
reviewing authority. An acquittal of desertion, or a disapproval of a conviction of
desertion, includes of course an acquittal, or a legal nullifying of the conviction, of
the offense of absence without leave^ included in the desertion.
So, where a charge of desertion against a soldier was , removed in orders, as
unfounded, and he was granted an honorable discharge, held that the forfeiture pre-
scribed by these regulations could not be enforced. Dig. Opin. J. A. G., 562, par. 9.
1 An officer or soldier who is discharged for his own convenience is not entitled to
travel pay or allowances. 5 Compt. Dec., 113. An enlisted man who is discharged at
his own request by reason of the illness of his wife is discharged for his own conven-
ience and is not entitled to travel pay. Ibid., 939.
For statute regulating the travel pay of enlisted men of the regular and volunteer
forces when discharged by the Secretary of War see the act of June 6, 1900 (31 Stat.
L., 708) , par. 541, ante. For statutes regulating the payment of extra pay to officers
and enlisted men of volunteers on muster out or discharge from the military service
see the acts of January 12, 1899 (30 Stat. L., 784), March 3, 1899 (ibid., 1073), and
May 26, 1900, (31 ibid., 217), pars. 536 to 538, ante.
Under section 1290, Revised Statutes, as modified by the act of February 27, 1877
(19 Stat. L., 244) , it has been held that where a soldier's first discharge is followed
by his reenlistment within a few days, so that his service is practically continuous,
and his second discharge occurs at the place of his original enlistment, he is not
entitled to commutation for travel and subsistence to the place of his second enlist-
ment. U. S. v. Thornton, 160 U. S., 654.
MILITARY LAWS OF THE UNITED STATES. 345
only shall be furnished to enlisted men.1 Act of March
2, 1901 (31 Stat. L.,
STOPPAGES AND DEDUCTIONS.
Par.
894. The same, balances.
895. Tobacco.
896. Subsistence stores, credit sales.
897. Damage to arms.
898. Assignments of pay forbidden.
Par.
889. Soldiers' Home.
890. Recruits at depots.
891. Altering clothing.
892. The same, restriction.
893. Clothing allowance.
889. There shall be deducted from the pay of every non-
commissioned officer, musician, artificer, and private of 7 ^Ia£- 3» 6^51> s-
the Army of the United States the sum of twelve and 7 ^fi 3- ^ s-
a half cents per month, y\*hich sum so deducted shall, by Sec.48i9,B.s.
the Pay Department of the Army, be passed to the credit
of the Commissioners of the Soldiers' Home. * * *
But the deduction of twelve and a half cents per month
from the pay of noncommissioned officers, musicians,
artificers, and privates of regiments of volunteers, or other
corps or regiments raised for a limited period, or for a
temporary purpose or purposes, shall only be made with
their consent.2
890. Traders and laundrymen at depots for recruits in Recruits to
•,.,,,, . , , ., ,., have credit, etc.,
the Army are authorized to lurnisn such recruits, on credit, at depots for re-
with laundr}^ work and such articles as may be necessary June 30, 1882,
for their cleanliness and comfort, at a total cost not to 122.'
exceed seven dollars in value per man. That muster and
pay rolls be made out showing the amounts the recruits
respectively owe to the traders and laundrymen, and signed
by them before leaving the depot, and that the traders
and laundrymen be paid on such rolls, the amount paid for
each recruit to be noted accordingly on the muster and
descriptive rolls, in order that it may be withheld, after
he joins his company, by the paymaster, at the first sub-
sequent payment, under such rules and regulations as may
be adopted by the War Department: Provided, That this
provision shall apply only to recruits on their enlistment,
and the credit shall only be allowed on the written order
of the regular recruiting officer at said station.3 Sec. 3,
act of June 30, 1882 (22 Stat. Z.,
1 This enactment replaces a requirement in pari materia of the act of May 26, 1900.
31 Stat. L., 211.
2 The act of March 16, 1896 (29 Stat. L., 60), discontinuing the practice of retaining
the pay of enlisted men, contains a provision excepting the deduction authorized by
section 4819 of the Revised Statutes from the operation of the clause.
3 The act of June 28, 1893 (27 Stat. L., 426) , directing that no more post traders be
appointed, will operate to restrict this privilege to laundrymen at depots. Paragraph
1192, Army Regulations of 189.5, requires all laundry charges to be charged to the
recruit on his clothing account and to be noted on his descriptive and assignment card.
346 MILITARY LAWS OF THE UNITED STATES.
^Altering cloth- ggj jt ^^ ^G ]awfu] for the commanding officer of
69Fvbi97'p18274?3 °' each regiment, whenever it may be necessary, to cause the
feec. i22o,R.s. coats5 vests, and overalls or breeches which may from time
to time be issued to and for his regiment to be altered and
new made, so as to better to fit them to the persons respec-
tively for whose use they shall be delivered; and for defray-
ing the expense of such alteration to cause to be deducted
and applied out of the pay of such persons a sum or sums
not exceeding twenty -five cents for each coat, eight cents
for each vest and for each pair of overalls or breeches.1
MarVisg^v 892' Hereafter the regimental price fixed for altering
25, p. 83i'. and fitting soldiers' clothing shall not exceed the cost of
making the same at the clothing depots. l Act of March 2,
1889(25 Stat. L., 831).
anceshiafd11(S- 893> The money value of all clothing overdrawn by the
auctions^ ^^ soldier beyond his allowance shall be charged against him,
c- gk88- 7> 8> v' 4' every six months, on the muster roll of his company, or
le^sV8!?'^'011 his final statements if sooner discharged, and he shall
Ugee.i802, B.s. receive pay for such articles of clothing as have not been
issued to him in any year, or which may be due to him at
the time of his discharge, according to the annual esti-
mated value thereof. The amount due him for clothing,
when he draws less than his allowance, shall not be paid to
him until his final discharge from the service.2
clothing bai- 394. rphe amounts of * * * clothing balances accu-
ances; payment . IT, T .
on discharge, mulating to the soldier s credit under section thirteen
4, y. i7, p. in.' ]' hundred and two, shall, when payable to him upon his
Scc»lSOo^ K»S. -I • i i • i i» i • • s* L L T~* p
discharge, be paid out of tne appropriations tor .ray or
the Arm}7 " for the then current fiscal }^ear.
Tobacco. ^ 895. The amount due from any enlisted man for tobacco
6, v. is, p. 497.' sold to him at cost prices by the United States shall be
' deducted from his pay in the manner provided for the set-
tlement of clothing accounts.
•tor«8icVedit ^^' T^e amoun^ due from an enlisted man for articles
1866 s designated by the inspectors-general of the Army, and
25, v."i4, p. SBC', sold to-Mni on credit by commissaries of subsistence, shall
' be deducted from the payment made to him next after
such sale shall have been reported to the Paymaster-
General.3
1 Paragraph 263, Army Regulations of 1895, requiring deductions to be made from
the pay of soldiers in favor of "tradesmen" who, when "relieved from ordinary
military duty," are authorized to make or repair soldiers' uniforms, held, to authorize
stoppages, not only for dues to tailors who are in the military service, but for dues to
civilian tailors. Dig. Opin. J. A. G., 720, par. 4; Circular 8, A. G. O., 1896.
2 For regulations respecting clothing accounts see paragraphs 1286 and 1303-1309,
Army Regulations of 1901.
3 For rules respecting sales on credit see paragraphs 1428, 1429, 1431, 1436, and
1438, Army Regulations of 1901.
A stoppage is distinguished from a forfeiture or fine; and an executive stoppage,
MILITARY LAWS OF THE UNITED STATES. 347
897. The cost of repairs or damages done to arms, equip-ar^°gr damage to
ments, or implements shall be deducted from the pay of38F^-7^v1813^;
any officer or soldier in whose care or use the same were20|-ec 1303 B Si
when such damages occurred, if said damages were occa-
sioned by the abuse or negligence of said officer or soldier.
ASSIGNMENTS OF PAY.
898. No assignment of pay by a noncommissioned offi- nost°lssfgmbi?ay
cer or private, previous to his discharge, shall be valid. 37Mga^ 8^ Y92' °'
Sec.1291, R.S.
HISTORICAL NOTE. — A system of payments to troops by means of regimental pay-
masters had been prescribed by several resolutions of Congress during the Govern-
ment under the Articles of Confederation. The office of Paymaster-General had also
been established, but had ceased to exist prior to the organization of the Govern-
ment under the Constitution, the office and duties of Paymaster-General having been
merged in those of Commissioner of Army Accounts by a resolution of Congress dated
March 3, 1787. The system of regimental paymasters, established during the war of
the Revolution, was recognized and continued in the military force authorized
by the act of September 29, 1789 (1 Stat. L., 95) . A regiment of infantry and a bat-
talion of artillery were added to the establishment by the act of April 30, 1790 (ibid.,
119), to each of which a paymaster was attached, with the proviso that the paymas-
ter, in common with the other officers of the regimental staff, should be selected
from subalterns of the line. An additional regiment of infantry was authorized by
the act of March 3, 1791 (ibid., 222), with the same organization, and three addi-
tional regiments of infantry and a squadron of dragoons were added to the existing
establishment by the act of March 5, 1792 (ibid., 241), the infantry regiments having
the organization prescribed by the act of April 30, 1790. As no paymaster was
authorized for the squadron of dragoons it is presumed that payments to that organi-
zation were made by an officer detailed for the purpose.
By section 3 of the act of May 8, 1792 ( 1 Stat. L. , 280) , a paymaster with the rank and
pay of major was authorized, who was "to reside near the headquarters of the troops
of the United States." He was required to give a bond in the sum of $20,000, and his
duties were denned in the same enactment. By section 3 of the act of March 3, 1797
(ibid., 507), the title of Paymaster-General was conferred upon this officer, who was to
receive the pay and allowances already authorized by law. By section 7 of the act
of May 28, 1798 (ibid., 558), passed in contemplation of war with France, the rank
or stoppage by order, can not be imposed for an offense. But it is entirely legal to
stop against a soldier's pay, under the Army Regulations, an amount required to reim-
burse the United States for loss on account of damage done to public property, while
at the same time bringing the soldier to trial by court-martial for the offense involved.
Dig. Opin. J. A. G., 720, par. 3. Gratiot v. U" S., 15 Peters, 336; McKnight v. U. S.,
98 U. S., 180.
Pay due an officer or soldier can legally be stopped only by reason of an accounta-
bility to the United States (XVI Opin. Att. Gen., 477) . 'Thus it can not be stopped
to reimburse a hospital fund for money stolen, such fund, like a company fund, not
being public money. Dig. Opin. J. A. G., 721, par. 8.
The United States is not authorized to stop against the pay of an officer or soldier
an amount of personal indebtedness to another officer or soldier, though such indebt-
edness may have grown out of the relations of the military service. Thus, in the
absence of a sentence of court-martial forfeiting the same, an officer's pay can not
legally be stopped with a view to the reimbursement of enlisted men who have
deposited with him money for safe-keeping, which he has failed to return when
required, the officer being accountable for the same in a personal capacity only.
Ibid., par. 2375.
Authorized stoppages will be entered on the rolls and paid in the following order:
1. Reimbursements to the United States for the loss or damage to arms, equip*
ments, or other public property, the nature of which will be clearly stated, extra
issues of clothing, transportation, subsistence, expense of apprehending deserters.
2. Amounts paid post exchange and laundrymen at recruit rendezvous.
3. Reimbursements to individuals (as the paymaster, for instance).
4. Forfeitures for desertion, and fines by sentence of court-martial. Par. 1568,
A. R., 1901.
348 MTLITAEY LAWS OF THE UNITED STATES.
and pay of lieutenant-colonel was conferred upon the incumbent of the office of
Paymaster-General, and deputy paymasters were authorized, in addition to the regi-
mental paymasters. By section 3 of the act of March 16, 1802 (2 ibid., 132), passed
with a view to reduce and fix the military peace establishment, provided for a pay-
master of the Army; he was to be assisted by seven paymasters and two assistants,
who were to be attached to districts; the deputy paymasters and assistants were to
be detailed from the line, and were to receive additional pay at the rate of $30 and
$10 per month, respectively.
The distribution of clothing to the Army was vested in the Pay Department by
section 8 of the act of March 16, 1802 (2 ibid., 132), and section 9 of the act of Janu-
ary 11, 1812 (ibid., 671); this duty continued to be performed by the Pay Depart-
ment until it was transferred to the Quartermaster's Department by the act of May
18, 1826 (4 ibid., 173).
Provision was made for the payment of the troops during the war of 1812 by the
appointment of as many district paymasters as the President might deem necessary^
if taken from the line these officers were to receive $30 per month additional pay; if
appointed from civil life, they were to receive the pay and emoluments of majors
of infantry. Act of May 16, 1812, 2 Stat. L., 735. The Pay Department was estab-
lished, eo nomine, by section 3 of the act of April 24, 1816 (3 ibid., 297), and was
to consist of a Paymaster-General, who, with the regiment and battalion paymas-
ters, was to constitute the Pay Corps. The regimental and battalion paymasters
were given the rank of majors of infantry, and were to be selected from subalterns
of the line or from civil life; provision was made in this act for clerical service by a
clause authorizing the detail of noncommissioned officers as paymasters' clerks, who,
while so employed, were to receive double pay. Fourteen paymasters were added
to the department by the act of March 2, 1821 (ibid., 615) , and three by the actof July
4, 1836 (5 ibid., 117). The twenty-fifth section of the act of July 5, 1838 (5 ibid.,
256) , made provision for the expansion of the department, to meet the emergency of a
sudden increase in the strength of the Army, by authorizing the President to appoint
such number of additional paymasters as he might deem necessary "to pay the
troops with sufficient punctuality; " such increase, however, was not " to exceed one
for every two regiments of militia or volunteers," and the additional paymasters
were to be continued in service only so long as their services might be required
to 'pay militia and volunteers. The substance of this requirement was subsequently
incorporated in the Revised Statutes as section 1184 of that enactment. By section
3 of the act of July 4, 1836, the President was authorized to assign any officer of the
Army to duty as a paymaster, and the officer so assigned was to give bond, but was
entitled to receive the pay and emoluments allowed by law to paymasters. By sec-
tion 4 of the act of August 23, 1842 (ibid., 512), the number of majors in the depart-
ment was reduced to fourteen.
The duties of the officers of the Pay Department were defined by section 4 of the
act of April 24, 1816 (3 ibid., 297), and by the act of July 14, 1832 (4 ibid., 580),
bonds were required and paymasters brought under the Articles of War by section
6 of the act of April 24, 1816 (3 ibid., 297). The rank indicated by their pay and
allowances was conferred upon officers of this department by section 13 of the act of
March 3, 1847 (9 ibid., 184), and the restriction in respect to the exercise of com-
mand, which is embodied in section 1183 of the Revised Statutes, appeared originally
in the same enactment. By section 12 of the same act two deputy paymasters-general
(lieutenant-colonels) were added to the establishment. At the close of the war
with Mexico the organization of the department was fixed at one Paymaster-General
(colonel), two deputy paymasters-general (lieutenant-colonels), and twenty-five
paymasters with the rank of major, and the officers of the department were placed
upon the same footing in respect to tenure of office as officers of other disbursing
departments of the Army. By the same enactment the bonds of paymasters were
required to be renewed at least once in every four years, and as much oftener as the
President might direct.
The needs of the department were met during the period of the war of the rebel-
lion by the appointment of additional paymasters under the authority conferred by
section 25 of the act of July 5, 1838 (sec. 1184, Revised Statutes). At the general
reorganization of the Army in 1866 the personnel of the department was established
at one Paymaster-General (brigadier-general), two assistant paymasters-general
(colonels), two deputy paymasters-general (lieutenant-colonels), and sixty paymas-
ters with the rank of major. The Paymaster-General was to be selected from the
corps, and the vacancies in the grade of major were to be filled by the appointment
of persons who had served as additional paymasters during the war of the rebellion.
Sees. 18 and 23, act of July 28, 1866, 14 Stat. L., 335. At the reduction of 1869
it was provided by section 6 of the act of March 3, 1869 ( 15 ibid. , 318) , that there should
MILITARY LAWS OF THE UNITED STATES. 349'
be no more appointments or promotions in the department until the further order
of Congress, but this requirement was modified by the act of June 4, 1872 (17 ibid.,
219), which authorized the appointment of a Paymaster-General with the rank of
colonel to fill an existing vacancy, and by the act of March 2, 1875 (18 ibid., 338),
and joint resolution No. 7 of March 2, 1875 (ibid., 524), which fixed the number of
paymasters at fifty. The rank of brigadier-general was restored to the office of
Paymaster-General by the act of July 22, 1876 (19 ibid., 95), and the restriction
established by the act of March 3, 1869, was finally removed by the act of March 3,
1877 (ibid., 270).
A gradual reduction in the strength of the department was provided for in the acts
of March 3, 1883 (22 Stat. L., 451), and July 5, 1884(23 ibid., 108) , by authorizing the
voluntary retirement of paymasters of over twenty years' service, and by a require-
ment that there should be no more original appointments to the grade of lieutenant-
colonel and major until the number of officers in the department had been reduced
to thirty-five and the organization of the department was thereafter to be as follows:
one paymaster-general (brigadier-general), two assistant paymasters-general (colo-
nels), three deputy paymasters-general (lieutenant-colonels), and twenty-nine pay-
masters (majors). By the act of July 16, 1892 (27 ibid., 175), the number of majors
was reduced to twenty-five, by the act of February 12, 1895 (28 ibid., 655), it was
still further reduced to twenty, which was declared to be the number authorized by
law.
By section 21 of the act of February 2, 1901 (31 Stat. L. , 754) , the permanent strength
of the department was fixed at one paymaster-general with the rank of brigadier-
general, three assistant Paymasters-General with the rank of colonel, four deputy
paymasters-general with the rank of lieutenant-colonel, twenty paymasters with the
rank of major, and twenty-five paymasters with the rank of captain, mounted. A
system of details was also established by the operation of which the permanent com-
missioned personnel of the department will be replaced, as vacancies occur, by
officers detailed from the line of the Army for duty in the Pay Department.
CHAPTER XXI.
THE MEDICAL DEPARTMENT.
Par.
899-901. Organization.
902-906. Appointments, promotions, ex-
aminations.
907-909. Contract surgeons, dental sur-
geons.
910-913. Duties.
914-924. The Hospital Corps.
Par.
925-928. The Nurse Corps (female).
929-931. Hospitals.
932-933. Purchases.
934, 935. Sales of medical supplies.
936-939. The Army and Navy HospitaL
940-941. The Army Medical Museum.
942-952. Artificial limbs.
Par.
ORGANIZATION.
Par.
899. Composition.
900. Volunteer surgeons.
901. Rank.
902. Contract surgeons.
903, 904. Dental surgeons.
Fe™Tiit9oin's 899< The Medical Department shall consist of one
188ec.3ii68?B2.'s. Surgeon-General with the rank of brigadier-general,
eight assistant surgeons-general with the rank of colonel,
twelve deputy surgeons-general with the rank of lieutenant-
colonel, sixty surgeons with the rank of major, two
hundred and forty assistant surgeons with the rank of
captain and first lieutenant, the Hospital Corps as now
authorized by law and the Nurse Corps. Sec. 18, act of
February 2, 1901 (31 Stat. Z., 758).
^volunteer sur- 9QQ. On or after the passage of this act the President
may appoint for duty in the Philippine Islands fifty sur-
geons of volunteers with the rank and pay of major, and
one hundred and fifty assistant-surgeons of volunteers
with the rank and pay of captain mounted, for a period
of two years: Provided, That so many of these volunteer
medical officers as are not required shall be honorably
discharged the service whenever, in the opinion of the
Secretary of War, their services are no longer needed.
. Ibid.
1 For a note containing the statutory history of the Medical Department see end of
chapter.
350
MILITAEY LAWS OF THE UNITED STATES. 351
901. Officers of the Medical Department shall take rank ce§^eand pre"
and precedence in accordance with date of commission or 23Jplyn5i 1884> v'
appointment, and shall be so borne on the official Army
Register. Act of July 5, 1884 (23 Stat. Z., 111).
APPOINTMENTS, PROMOTIONS, EXAMINATIONS.
Par.
905. Credit for service.
906. Eelative rank on appointment
Par.
902. Appointments, examinations.
903. Promotion after five years' service.
904. The same, examinations.
902. No person shall receive the appointment of assistant
surgeon unless he shall have been examined and approved jJJJ s- 1( v- 4- p'
by an army medical board, consisting of not less than sec.ii72,B.s.
three surgeons or assistant surgeons, designated by the
Secretary of War; and no person shall receive the appoint-
ment of surgeon unless he shall have served at least five
years as an assistant surgeon in the Regular Army, and
shall have been examined and app'roved by an #,rmy med-
ical board, consisting of not less than three surgeons,
designated as aforesaid.1
903. Assistant surgeons who have served five years as terr°fiveti0yearsfr
surgeons or assistant surgeons in the volunteer forces seMare'2, ise?, c
[shall] 2 be eligible to promotion to the grade of captain. 423'. s> j'Une14'23'
Sec. 4, act of June 23, 1874 (18 Stat. L., 244). $' s<4>v' 18> p!
Sec. 1170, R.S.
904. Before receiving the rank of captain of cavalry, of^ssSaif/ su£
assistant surgeons shall be examined, under the provisions §^8 for promo"
of an act approved October first, eighteen hundred and sej- |6'jSiy 5P;
ninety, entitled "An act to provide for the examination1892iV-27'p<276-
of certain officers of the Army and to regulate promotions
therein."3 Sec. 2, act of July 27, 1892 (27 Stat. L., 276).
905. The period during which any assistant surgeon ice.reditfor8erv"
shall have served as a surgeon or assistant surgeon in the isfvJai? p*752. 8'
Volunteer Army during the war with Spain, or since, shall
be counted as a portion of the five years' service required
1 No allowance will be made for the expenses of persons undergoing examination,
but those who receive appointments will be entitled to travel allowances in obeying
the first order assigning them to duty. Par. 1573, A. R, 1901.
2 The word "shall" omitted from the roll.
3 Section 1172, Revised Statutes, provides that "no person shall receive the appoint-
ment of surgeon * * * unless he shall have been examined and approved by an
army medical board." The act of October 1, 1890 (26 Stat. L., 562), provides that
"should the officer fail in his physical examination and be found incapacitated for
service by reason of physical disability contracted in the line of duty, he shall be
retired with the rank to which his seniority entitled him to be promoted." An
assistant surgeon reported by one board as "not qualified physically," and by a sub-
sequent board as " incapacitated for active service," is not entitled to be retired as if
he had passed examination, though he continues on the active list for several years,
and requests examination for promotion. Steinmetz v, TL S., 33 Ct. Cls., 404.
352 MILITARY LAWS OF THE UNITED STATES.
to entitle him to the rank of captain. Sec. 18, act of Feb-
ruary 2, 1901 (31 Stat. Z., 752}.
Relative rank. 906. Nothing in this section shall affect the relative rank
for promotion of any assistant surgeon now in the service,
or who may hereafter be appointed therein, as determined
by the date of his acceptance of appointment or commis-
sion and as fixed in accordance with existing law and regu-
lations. Tbid.
CONTRACT SURGEONS — DENTAL SURGEONS.
onsntract sur 907. In emergencies the Surgeon-General of the Army,
with the approval of the Secretary of War, may appoint
as many contract surgeons as may be necessary, at a com-
pensation not to exceed one hundred and fifty dollars per
month.1 Sec. 17. Hid.
n" 908' Tne Surgeon-General of the Army, with the
ibid. approval of the Secretary of War, is hereby authorized to
employ dental surgeons to serve the officers and enlisted
men of the Regular and Volunteer Army, in the proportion
of, not to exceed one for every one thousand of said Army,
and not exceeding thirty in all. Said dental surgeons shall
be employed as contract dental surgeons under the same
terms and conditions applicable to army contract surgeons,
and shall be graduates of standard medical or dental col-
leges, trained in the several branches of dentistry, of good
moral and professional character, and shall pass a satisfac-
tory professional examination. Ibid.
The same. 909. Three of the number of dental surgeons to be
Examination.
supervision, employed shall be first appointed by the Surgeon General,
with the approval of the Secretary of War, with reference
enactment replaces section 2 of the act of May 12, 1898 (30 Stat. L., 400),
in pari materia. The office of contract surgeon was first established by regulation,
but their compensation has been provided for in the annual acts of appropriation for
the support of the Army. Such provision ceased to be made in the act of July 16,
1892 (27 Stat L., 175), and, until May 12, 1898, when their employment was again
authorized by law.
A "contract" or " acting assistant" surgeon is not a military officer and has no
military rank or status. He is amenable, indeed, to the military jurisdiction when
employed with the Army in the field in time of war, but he is in fact no part of the
military establishment, but is simply a civilian employed by the United States, under
a special contract for his personal services as a medical' attendant to the troops.
When not serving with troops before the enemy he has no other relation to the
military organization or the Government than that established by the terms of his
contract, made in accordance with the Army Regulations. He is not subject to mili-
tary orders in general, like an officer or soldier, but only to such orders or directions
as properly pertain to the peformance of his particular duties. He is of course not
eligible to be detailed as a member of a military court. As a civilian, however,
he is entitled to the per diem allowance, etc., when duly attending a court-martial
as a witness. Dig. Opin. J. A. G., par. 384.
MILITARY LAWS OF THE UNITED STATES. 358
to thei-r fitness for assignment, under the direction of the
Surgeon-General, to the special service of conducting the
examination and supervising the operations of the others;
and for such special service an extra compensation of sixty
dollars per month will be allowed: Provided further, That
dental -college graduates now employed in the Hospital
Corps, who have been detailed for a period of not less than
twelve months to render dental service to the Army, and
who are shown by the reports of their superiors to have
rendered such service satisfactorily, may be appointed con-
tract dental surgeons without examination.1 Ibid.
DUTIES.
910. Medical officers of the Army may be assigned bydu^nment to
the Secretary of War to such duties as the interests of the 18||%327Jlpyiw7f
service may demand.2
Oil. The medical officers of the Army and contract m? J£SSSS**£
geons shall whenever practicable attend the families of the J™"^ of offi~
officers and soldiers free of charge. Act of July 5, 1884 ^\^ 1884> v-
(23 Stat. L., 112).
912. The officers of the Medical Department of the Army co^7ision of
shall unite with the officers of the line, under such rules^^g3'^8]3!'^
and regulations as shall be prescribed by the Secretary of 74^c 1174^ B s>
War, in superintending the cooking done by the enlisted
men; and the Surgeon-General shall promulgate to the
officers of said corps such regulations and instructions as
may tend to insure the proper preparation of the ration of
the soldier.
913. Officers of the Medical Department of the Army m*ndht °f com'
shall not be entitled, in virtue of their rank, to command R feRb -J^ 1847,v£
o, s. o, v« y, p. i/o.
in the line or in other staff corps.3 Sec. H69, B. s.
1 For regulations fixing the status and regulating the employment and duties of con-
tract and dental surgeons see par. 1574 to 1589, Army Regulations, of 1901.
2 The Medical Department, under the direction of the Secretary of War, is charged
with the duty of investigating the sanitary condition of the Army and making recom-
mendations in reference thereto, with the duty of caring for the sick and wounded,
making physical examinations of officers and enlisted men, the management and con-
trol of military, the recruitment, instruction and control of the Hospital Corps and
of the Army Nurse Corps (female), and furnishing all medical and hospital supplies,
except for public animals. Par. 1570, A. R., 1901.
The medical officer of a command is responsible (within reasonable limits) for the
health of the men composing it. Where, in the course of the proper and regular
performance of his function, he excuses men from duty on account of sickness or
disability, the commanding officer should almost as a matter of course accept his
action as conclusive and final. If he refuses to do so and orders on duty a soldier
thus excused, he assumes the responsibility of any material injury that may thus
result to the individual or the service, and, if injury results in fact, is amenable to
trial for the military offense involved. Dig. Opin. J. A. G., par. 1658.
3 An officer of the Pay or Medical Department can not exercise command, except
in his own department; but by virtue of his commission he may command all enlisted
men like other commissioned officers. Par. 18, A. R., 1901.
22924—08 23
354
MILITARY LAWS OF THE UNITED STATES.
THE HOSPITAL CORPS.
Par.
914. Composition.
915. Hospital stewards, number.
916-917. The same, increase.
918. The same, selection from volunteers.
919. The same, rank and pay.
Par.
920. Examination.
921. The same, volunteer service.
922. Privates, duties.
923. The same, pay and allowance.
924. Acting hospital stewards.
The
Corps.
The same.
June 2, 1898, v
30, p. 428.
Ht 914. The Hospital Corps l of the United States Army
24^pr' Is-^Mar! sna^ consist of hospital stewards, acting hospital stewards,
16, 1895, v. 29, p. an(j privates; and all necessary hospital services in garri-
son, camp, or field (including ambulance service) shall be
performed by the members thereof, who shall be regularly
enlisted in the military service; said corps shall be perma-
nently attached to the Medical Department.2 Act of
March 1, 1887 (%4 Stat. Z., 435).
Hospital stew- 915. The Secretary of War is empowered to appoint as
Mar. i, 1887, v. manv hospital stewards as, in his judgment, the service
24, p. 435, Mar. 16, " , .
18%, v. 29, p. 6i. may require; but not more than one hospital steward shall
be stationed at any post or place without special authority
of the Secretary of War. There shall be no appointments
of hospital stewards until the number of hospital stewards
shall be reduced below one hundred, and thereafter the
number of such officers shall not exceed one hundred.
Act of March 16, 1896 (29 Stat. Z., 61).
916. All provisions of law limiting the number of hos-
pital stewards in service at any one time to one hundred
* * * are hereby suspended during the existing war:
Provided. That the increase of hospital stewards under
this act shall not exceed one hundred. Act of June 2, 1898
(30 Stat. Z., 488).
917. The Secretary of War is authorized to appoint in
the Hospital Corps, in addition to the two hundred hospital
stewards now allowed by law, one hundred hospital stew-
ards. Sec. 18, Act of February 8, 1901 (31 Stat. L. , 753).
918. Men who have served as hospital stewards of vol-
unteers of volunteer regiments, or acted in that capacity
during and since the Spanish-American war for more than
lrrhe act of March 11, 1864 (13 Stat. L., 20), made provision uniform for a system
of ambulances for the armies in the field, by the establishment of an Ambulance
Corps, to be composed of officers and enlisted men detailed for such service from the
regiments of the line. The composition, distribution, and duties of the corps were
regulated by statute, supplemented, in some matters by Executive regulations and
orders. The act of March 11, 1864, though passed to meet an emergency of war,
was not restricted to a time of war and so continued in existence until replaced by
the enactment establishing the Hospital Corps.
2 Sections 1179, 1180, and 1181 of the Revised Statutes were repealed by the act of
March 1, 1887 (24 Stat. L., 435), creating the Hospital Corps. By the act of March
8, 1898 (30 ibid., 261), the enlisted men of the Hospital Corps are required to be
included in the authorized enlisted strength of the Army.
The same.
Feb. 2, 1901, s.
18, v. 31, p. 753.
The same.
Ibid.
MILITARY LAWS OF THE UNITED STATES. 355
six months, may be appointed hospital stewards in the
Regular Army: And provided further, That all men so
appointed shall be of good moral character and shall have
passed a satisfactory mental and physical examination.
Ibid.
919. The pay of hospital stewards shall be forty -five g^^^J^-
dollars per month5 with the increase on account of length 188?. v- 24. P- 435'.
of service as is now or may hereafter be allowed by law
to other enlisted men. They shall have rank with ord-
nance-sergeants and be entitled to all the allowances apper-
taining to that grade. Sec. 3, act of March 1, 1887 (24
Stat. L.. J$b\
920. No person shall be appointed a hospital steward fexca^nMa?ni
unless he shall have passed a satisfactory examination wf^7'Aj| 435'
before a board of one or more medical officers as to his
qualifications for the position, and demonstrated his fitness
therefor by service of not less than twelve months as act-
ing hospital steward; and no person shall be designated
for such examination except by written authority of the
Surgeon-General, Sec, 4, ibid.
921. All provisions of law * * * requiring that a Ju^Tisos, v
person to be appointed a hospital steward shall first demon- 30) p> 428-
strate his fitness therefor by actual service of not less than
twelve months as acting hospital steward, * * * are
hereby suspended during the existing war. Act of June 2,
1898 (30 Stat. Z.,
922. The Secretary of War is empowered to enlist, or Privates; du-
cause to be enlisted, as many privates of the Hospital seo.5,iM&
Corps as the service may require, and to limit or fix the
number, and make such regulations for their government
as may be necessary; and any enlisted man in the Army
shall be eligible for transfer to the Hospital Corps as a
private.1 They shall perform duty as wardmasters, cooks,
nurses, and attendants in hospitals, and as stretcher bearers,
litter bearers, and ambulance attendants in the field, and
such other duties as may by proper authority be required
of them.2 Sec. 5, ibid.
lHeld, that a person enlisted in the Hospital Corps, or transferred to it from another
part of the Army under the authority of the act of March 1, 1887, could not be trans-
ferred out of it, or back again to the organization from which he was transferred
originally, without a breach of contract. The authority to transfer to this corps is
expressly granted by the statute, but there is no statutory authority for depriving
transferred members, by undoing their transfers, of the positions given them accord-
ing to the express law. Dig. Opin. J. A. G., par. 1449. For regulations prepared
under the authority conferred by this section see paragraphs 1590 to 1620, Army
Kegulations of 1901, and the Manual for the Medical Department.
2 Held, that neither the act organizing the Hospital Corps, of March 1, 1887, nor
paragraph 1410, Army Kegulations, 1895 (par. 1606, A. R., 1901), relating to the
assignment of privates of the corps as nurses, etc., was to be construed as restricting
356 MILITARY LAWS OF THE UNITED STATES.
aiSJ.and all°w" 923> Tne Pay of privates of the Hospital Corps shall be
juSiyCi36'i89?dv' 'eighteen dollars per month, with the increase on account
27, p. 120. of length of service as is now or may hereafter be allowed
by law to other enlisted men ; they shall be entitled to the
same allowances as a corporal of the arm of service with
which on duty. Sec. 6, ibid.
tafstewlrdhs°spi" 924- Privates of the Hospital Corps may be detailed as
1887% 724*5>ar436 ac^ng hospital stewards by the Secretary of War, upon
the recommendation of the Surgeon -General, whenever the
necessities of the service require it ; and while so detailed
their pay shall be twenty-five dollars per month, with
increase as above stated. 1 Acting hospital stewards, when
educated in the duties of the position, may be eligible for
examination for appointment as hospital stewards as above
provided. Sec. 7, ibid.
THE NURSE CORPS.
Par.
928. Travel expenses.
Par.
925. Composition.
926, 927. Pay and allowances.
composition, 925. The Nurse Corps (female) shall consist of one super-
intendent, to be appointed by the Secretary of War, who
19, v. si, p. 753. " shall be a graduate of a hospital training school having a
course of instruction of not less than two years, whose
term of office may be terminated at his discretion, whose
compensation shall be one thousand eight hundred dollars
per annum, and of as many chief nurses, nurses, and
reserve nurses as may be needed. Reserve nurses may be
assigned to active duty when the emergency of the service
demands, but shall receive no compensation except when
on such duty : Provided, That all nurses in the Nurse
Corps shall be appointed or removed by the Surgeon-Gen-
the use of nurses to attendance upon patients within the hospital, but that nurses
might legally be furnished from such privates to attend officers at their quarters.
Ibid., par. 1452.
Where a hospital is not supplied with enough privates of the Hospital Corps to do
the necessary police duty which, under section 5 of the act organizing the corps, of
March 1, 1887, they may properly be required to perform, held, that convalescents at
the hospital may, in the discretion of the surgeon in charge and by his prescription
and direction, be employed to assist in such duty. Ibid., par. 1453.
1 The act of March 1, 1887 (24 Stat. L., 435), provides for "acting hospital stew-
ards" as a separate grade in the corps, but does not prescribe any mode of filling
that grade other than by declaring that "privates " of the corps may be detailed as
such "acting" stewards. Held, therefore, that when such a private was so detailed
he ceased to be a private of the corps and became at once the acting hospital stew-
ard constituted by the act; and if discharged while so detailed, should be discharged
asan " acting hospital steward," receiving travel pay as such. Dig. Opin. J. A. G.,
par. 1447.
A private who is detailed as an acting hospital steward, as provided in the act of
March 1, 1887, is to be regarded as promoted to that grade, and the extra pay, travel
pay, and retired pay to which he may be entitled upon discharge or retirement are to
be computed on the basis of the pay provided for an acting hospital steward. 6
Compt. Dec., 807.
MILITARY LAWS OF THE UNITED STATES. 357
eral, with the approval of the Secretary of War ; that they
shall be graduates of hospital training schools, and shall
have passed a satisfactory professional, moral, mental, and
physical examination. Sec. 19, act of February 2, 1901
(31 Stat. L., 753).
926. The pay and allowances of nurses and of reserve Payandaiiow.
nurses when on active service shall be forty dollars per IIM.
month when on duty in the United States, and fifty dollars
per month when without the limits of the United States.
Hid.
927. They shall be entitled to quarters, subsistence, and JJje same,
medical attendance during illness, and they may be granted
leaves of absence for thirty days, with pay, for each calen-
dar year; and when serving as chief nurses their pay
may be increased by authority of the Secretary of War,
such increase not to exceed twenty-five dollars per month.
Payments to the Nurse Corps shall be made by the Pay
Department. Ibid.
928. The superintendent and nurses shall receive trans- Travel ex-
. . , penses.
portation and necessary expenses when traveling under md.
orders. IMd.
929. Hospital matrons may be employed in
post or regimental hospitals in such numbers as may be4' sec!'m9,4R.s.
necessary. l
930. Hospital matrons in post and regimental hospitals tr^°sspital ma~
shall receive ten dollars a month * * *. One ration 2 ^gjf'i^'j;
in kind or by commutation shall be allowed to each.2 jSyZise^v2!^
p. 416, s. 19; Feb. 2, 1901, v. 31, p. 753. Sec.'l277,R.S.'
HOSPITAL BUILDINGS.
A building will not be erected for nor occupied as a hospital until the opinion of a
medical officer has been obtained in writing upon the suitableness of site and pro-
posed arrangement. If the commanding officer dissent from this opinion he will
return it to the surgeon of the post with his reasons indorsed thereon, who will
forward it, through military channels, to the Surgeon-General of the Army. Par.
1644, A. R., 1901.
Hospitals will be erected at permanent posts in accordance with plans and speci-
fications furnished by the Surgeon-General, approved by the Secretary of War.
Par. 1645, ibid.
When alterations of or additions to hospitals are necessary the surgeon of the post,
after obtaining from the quartermaster an estimate of cost, will transmit plans and
specifications, with proposed modifications, through military channels to the Secre-
tary of War. Similar action will be taken upon quarters for hospital stewards.
Par. 1646, ibid.
No portion of any hospital building at a military post will be used or occupied as
quarters, nor will any mess be permitted or maintained therein except such as may
be necessary for patients and enlisted men there on duty. Par. 1650, ibid.
1 The authority for the employment of female nurses, conferred by section 1239,
Revised Statutes, was replaced by section 19, act of February 2, 1901, paragraphs
925 to 927 ante. The rate of compensation for female nurses, fixed at 40 cents per
day by section 1277 of the Revised Statutes, was replaced by the rates of compensa-
tion established iii section 19 of the act of February 2, 1901 (31 Stat. L., 753), para-
graph 926 ante.
358 MILITARY LAWS OF THE UNITED STATES.
931- Hereafter the posts at which such quarters [for
aiFeb 27 1893 v hospital stewards] shall be constructed shall be designated
27, p. 484. \yy ^ke Seccetary of War, and such quarters shall be built
by contract, after legal advertisement, whenever the same
is practicable. Act of February 27, 1893 (27 Stat. L. , 484).
PURCHASES OF MEDICAL SUPPLIES.
purchases. 932. Hereafter, except in cases of emergfencv or where
Mar. 2, 1901, v.
si, p. 905. it is impracticable to secure competition, the purchase of
all supplies for the use of the various departments and
posts of the Army and of the branches of the army service
shall only be made after advertisement, and shall be pur-
chased where the same can be purchased the cheapest, qual-
ity and cost of transportation and the interests of the Gov-
ernment considered; but every open-market emergency
purchase made in the manner common among business men
which exceeds in amount two hundred dollars shall be re-
ported for approval to the Secretary of War under such
regulations as he may prescribe.1 Act of March 2, 1901
(31 Stat. Z., 90S).
Si<Sh?spSitafiOT 933> Such quantities of fresh or preserved fruits, milk,
42AsUgi43V18i2! p' Butter, and eggs as may be necessary for the proper diet
28|ec.ii75,R. s °^ *ke sick may be allowed in hospitals. They shall be
provided under such rules as the Surgeon-General, with
the approval of the Secretary of War, shall prescribe.2
SALES OF MEDICAL SUPPLIES.
934> Civilian employees of the Army stationed at mili-
taiT Posts ma^' under regulations to be made by the Sec-
22, p. 459. retary of War, purchase necessary medical supplies, pre-
scribed by a medical officer of the Army, at cost, with ten
per centum added.3 Act of March 3, 1883 (22 Stat. L.,
459).
tionaa1ieHomesNa" 935- Hereafter, upon proper application therefor, the
29^45.' 1896>v' Medical Department of the Army is authorized to sell
1 For general provisions in respect to the procurement of supplies by contract see
the chapter entitled CONTRACTS AND PURCHASES. For special authority to sell
unserviceable medical and hospital stores and other property see the act of August 6,
1894 (28 Stat. L., 241). The above enactment repeals and' replaces the act of Feb-
ruary 27, 1893 (27 ibid., 485), in pan materia.
2 For statutes authorizing an addition to the ration in the case of patients in hos-
pital who are too sick to be subsisted on the army ration, and for a similar increa e
in case of enlisted men in camp during recovery from low conditions of health, con-
sequent upon service in unhealthy regions or in debilitating climates, see the act of
February 26, 1900 (31 Stat. L., 212).
*For regulations governing such purchases see paragraph 1638 Army Regulations
of 1901.
MILITARY LAWS OF *THE UNITED STATES. 359
medical and hospital supplies at its contract prices to the
National Home for Disabled Volunteer Soldiers. • Act of
June 11, 1896 (29 Stat. L., 44$).
THE HOT SPRINGS RESERVATION IN ARKANSAS.
THE ARMY AND NAVY HOSPITAL.
936. The Secretary of the Interior .* * * is hereby TO^Sto'£S
authorized to continue to furnish to the bath houses lo- ^vltiSn. the
cated off the permanent reservation at Hot Springs, Ar-
kansas, a sufficient amount of hot water for drinking and
bathing -purposes: Provided, That furnishing such bath ^Army^nd
houses shall in no way interfere with the supply of KotjJ,JJg Hospital
water necessary for the use of the Army and Navy Hos- i^^'^pSia,
pita! and for the bath houses located upon the permanent
reservation subject to any further action of Congress on
the subject.1 Joint resolution No. lh March 3, 1887 (24
Stat. L., 647).
937. The Secretary of the Interior is hereby authorized A^ot springs,
and directed to utilize the hot water upon the reservation fumtshedmftnree
at Hot Springs, Arkansas, not necessary for the Army and JJJJ^nal bath
Navy Hospital, the bath houses erected and to be erected 26J'i^v826Iap'
upon said reservation, and the bath houses now erected and 619-
furnished with hot water by authority of the Secretary off
said reservation, by permitting its use by not exceeding
three bath houses to be erected by individuals below and
off said Hot Springs Reservation (the expense of obtaining
said water to be borne by the proprietors of said bath
houses), said water to be furnished under the same restric-
tions and regulations as now govern the supply of hot
water furnished to the bath houses above and off said res-
ervation, and that the water rents for all bath houses be
increased to thirty dollars per tub per annum: Provided, Newhousesnot
That the new bath houses which may be so erected shall persons inter-
, , i nii ested in houses
not be owned or controlled by any person, company, or on reservatiom.
corporation which may be the owner or interested in any
other bath house on or near the Hot Springs Reservation;
and if the ownership or control of any such bath house be
transferred to any person or corporation owning or inter-
ested in any other bath house on or near said reservation,
the Secretary of the Interior shall, for that cause, deprive
said bath house of the hot water, and also any other bath
house in which any such person or corporation shall be in-
1For statutes creating the reservation on Hot Springs Mountain, Arkansas, see sec-
tion 4 of the act of March 3, 1877 (19 Stat. L., 378); act of December 16, 1878 (20
ibid., 258), and section 3, act of June 16, 1880 (21 ibid., 289).
360 MILITARY LAWS OF THE UNITED STATES.
terested, and shall cancel any lease from the United States
which any such person or corporation may hold or be in-
terested in. Joint resolution No. 8, March £6, 1888 (25
Stat. Z., 619).
^ Estebushment 933. That one hundred thousand dollars be, and hereby
*8? appropriated for the erection of an Army and Navy Hos-
l at Hot Springs, Arkansas, which shall be erected by
22, p. 121. anc[ under the direction of the Secretary of War, in accord-
ance with plans and specifications to be prepared and sub-
mitted to the Secretary of War by the Surgeons-General
of the Army and Navy; which hospital, when in a con-
dition to receive patients, shall be subject to such rules,
regulations, and restrictions as shall be provided by the
Proviso. President of the United States: Provided further, That
such hospital shall be erected on the Government reserva-
tion at or near Hot Springs, Arkansas.1 Act of June 30,
188%(M Stat. I,., 181).
Estimates. 939. Estimates for this service shall hereafter be sub-
24fpg245'.1886' v'niitted as a part of the military establishment.2 Act of
August 4, 1886 (24 Stat. Z.,
THE ARMY MEDICAL MUSEUM.
THE LIBRARY OF THE SURGEON-GENERAL'S OFFICE.
940. For the purchase of the property in Washington
14, p. 23.' City, known as Ford's Theater, for the deposit and safe-
keeping of documentary papers relating to the soldiers of
the Army of the United States, and of the museum of
the Medical and Surgical Department of the Army,3
* * * dollars. Act of April 7, 1866, (14 Stat. Z., 23).
1 For regulations prepared under the authority conferred by this statute see General
Orders, No. 60, A. G. O., of 1892, and the orders amendatory thereof. Under the pres-
ent regulations for the government of the Army and Navy General Hospital at Hot
Springs, Ark., civil employees of the Government are not eligible to admission. Dig.
Opin. J. A. G., par. 1454.
Under the act of June 30, 1882 (22 Stat. L., 121), and the regulations made by the
President in pursuance thereof, enlisted men of the Army undergoing treatment in
the Army and Navy Hospital at Hot Springs, Ark., are entitled to commutation of
rations at the rate of 30 cents per day only, and not at the rate of 40 cents per day
under General Orders, No. 137 A. G. 0., of July 26, 1899. 6 Compt. Dec., 642.
2The act of August 4, 1886 (24 Stat. L., 245) , contained the requirements that the
sums therein appropriated should be disbursed under the direction of the Secretary
of War. Appropriations for the construction and repair of hospitals since that of
June 13, 1890 (26 Stat. L., 154), have been applicable to the Army and Navy Hos-
pital at Hot Springs, Ark.
The United States not being vested, by reservation or cession, with exclusive juris-
diction over the site of the General Hospital at Hot Springs, though owning the land,
held, in November, 1892, that the courts and judicial officers of Arkansas had sub-
stantially the same jurisdiction and authority to issue and execute process to and upon
the military and naval persons stationed or commorant at the hospital, as in cases
of civilians there resident or commorant. Dig. Opin. J. A. G., par. 1456.
3 The museum and library are supported by annual appropriations of Congress.
MILITARY LAWS OF THE UNITED STATES. 361
941. Binding for the departments of Government shall be
done in plain sheep or cloth, except that record and account
books may be bound in Russia leather, sheep fleshes, and Binding.
, ~ - Jftn. 12, 1895, s.
skivers when authorized by the head of a department: se, v. 28, p. eoi.
Provided, The libraries of the Surgeon-Generals office,
* * * may have books for the exclusive use of said
libraries bound in half Turkey, or material no more ex-
pensive.1 Sec. 86, act of January 1%, 1895 (28 Stat. L.,
601).
ARTIFICIAL LIMBS.
Par. I Par.
942. Artificial limbs. | 948-949. Transportation to be furnished
943. To be renewed once in three years. | by Quartermaster-General.
944-945. Commutation.
946. Commutation to be paid directly to
soldier, etc.
947. Transportation to persons for whom
artificial limbs are furnished.
950. Trusses.
951. Application for, how made.
952. Trusses to be purchased by Surgeon-
General.
942. Every officer, soldier, seaman, and marine who Artificial limbs.
was disabled during the war for the suppression of the Once ^nThTee
rebellion, in the military or naval service, and in the line ye*uiy 2, ises, v.
of duty, or in consequence of wounds received or disease June iTSfeo23!'
contracted therein, and who was furnished by the War june'so! im^v.
Department since the seventeenth day of June, eighteen 23; ISTG* v6; i9^ap.
hundred and seventy, with an artificial limb or apparatus v. igfp! 252'; Mar!
for resection, who was entitled to receive such limb or 1103. ' A '
apparatus since said date, shall be entitled to receive a new
limb or apparatus at the expiration of every three years
thereafter, under such regulations as have been or may be
prescribed by the Surgeon -General of the Army.2 Act of
March 3, 1891 (26 Stat. Z., 1103).
943. Every officer, soldier, seaman, and marine who, in Thesamg
the line of duty in the military or naval service of the 19, P- 8; .Aug. '15,
United States, shall have lost a limb or sustained bodily 203; 'Mar. 3, i&i,"
...,.'.,. - £ , . ,. , J v. 26, p. 1103.
injuries depriving him of the use of any of his limbs,
shall receive once every three years an artificial limb or
appliance, or commutation therefor, as provided and lim-
ited by existing laws, under such regulations as the Sur-
1 The appropriation for "the library of the Surgeon-General's office is in terms
sufficiently specific to include the purchase of books of reference and periodicals
which are necessary for, or appropriate to, that library, notwithstanding the provi-
sions of section 3 of the act of March 15, 1898, which prohibits the purchase of
books of reference and periodicals for the use of any executive department, or other
Government establishment not under an executive department, unless payment
therefor is specifically provided for in the application. 6 Compt. Dec., 736; ibid.,
423.
2 The clause added to section 4787 of the Revised Statutes by the act of February
27, 1877 (19 Stat. L., 240) , was repealed by the act of March 3, 1891 (26 Stat. L., 1103).
862 MILITARY LAWS OF THE UNITED STATES.
geon-General of the Army may prescribe; and the period
of three1 years shall be held to commence* with the filing
of the first application after the seventeenth day of June,
in the year eighteen hundred and seventy. Sec. 1, act of
Appropriation August 15, 1876 (19 Stat. Z. , 203). The * * * sums
to be disbursed y '
by surgeon-Gen- * hereby appropriated shall be expended and dis-
bursed under the direction of the Surgeon-General of the
Army, and in accordance with existing laws.2 Act of
March 23, 1876 (19 Stat. L., 8).
ra?eT ta^umb! 944. Every person entitled to the benefits of the preced-
etjune IT, 1870, mg section may, if he so elects, receive, instead of such
P. ^Bs,8 lug.' ill limb or apparatus, the money value thereof, at the follow-
p8?203C' 30°' v' 19> m£ rates, namely: For artificial legs, seventy-five dollars;
Sec.4788,B.s. ^ arms? ftfty dollars; for feet, fifty dollars; for apparatus
for resection, fifty dollars.
^^' Every person in the military or naval service who
artificial l°st a limb during the war of the rebellion, or is entitled to
Febd'27'i877 c ^e kenefits of section forty-seven hundred and eighty-
6%ec**7&^s seven? but from the nature of his injury is not able to use
an artificial limb, shall be entitled to the benefits of section
forty-seven hundred and eighty-eight, and shall receive
money commutation as therein provided.
to^^aid^df ®^& Hereafter in case of commutation the money shall
etctlYNo Sfeeieto ^e Pa^ directly *° the soldier, sailor, or marine, and no fee
agMar 3 1891 v or comPensa>tion shall be allowed or paid to any agent or
26, Pa 979. ' attorney.3 Act of March 3, 1891 (26 Stat. L., 979).
toS^JeSSSMto 947. The Secretary of War is authorized and directed to
limbs are fifur- f urnish to the persons embraced by the provisions of sec-
tion forty-seven hundred and eighty-seven, transportation
305Uv! H' 1p?842; to and from their homes and the place where they may be
v^fp.1^6 Aug! required to go to obtain artificial limbs provided for them
v^p^^Feb'. under authority of law.
27, 1877, C. 69, V. 19, p. 252.
transportation 948. The transportation allowed for having artificial
QUuTASehrniastery- limbs fitted shall be furnished by the Quartermaster-
G secr 21,' Aug. is, General of the Army, the cost of which shall be refunded
F8e?b! 27,19i8772(v.; from the appropriations for the purchase of artificial limbs.
19, p. 252; Mar. 3J
949. Necessary transportation to have artificial limbs
fitted shall be furnished by the Quartermaster-General of
ter-General.
1 Period reduced to three years by the act of March 3, 1891 (26 Stat. L., 1103).
2 See XVII, Opin. Att. Gen.
3 The requirement of section 4789, Revised Statutes, that the Commissioner of Pen-
sions shall be furnished by the Surgeon-General with lists of beneficiaries with a
view to their payment, was superseded by the the act of August 15, 1876 (19 Stat. L.,
244), requiring payments on account of artificial limbs, etc., to be made by the
latter officer.
MILITARY LAWS OF THE UNITED STATES. 363
the Army, the cost of which shall be refunded out of any 18f^c- ^^g-J£'
«/ " •? lo/o, v. iy, p. A)4;
money appropriated for the purchase of artificial limbs: |^4t- ^Sl98' 18
Provided, That this act shall not be subject to the provi- sec.479i,B.s.
sions of an act entitled "an act to increase pensions,"
approved June eighteenth, eighteen hundred and seventy
four. Sec. 2, act of August 15, 1876 (19 Stat. L., £04).
TRUSSES.
950. Every soldier of the Union Army, or petty officer, #£^*££*
seaman, or marine in the naval service, who was ruptured 20^353 .1879> v'
while in the line of duty during the late war for the sup- Sec- 1176' K*s-
pression of the rebellion, or who shall be so ruptured
thereafter in any war, shall be entitled to receive a single
or double truss of such style as may be designated by
the Surgeon -General of the United States Army as best
suited for such disability; and whenever the said truss or
trusses so furnished shall become useless from wear, de-
struction, or loss, such soldier, petty officer, seaman, or
marine shall be supplied with another truss on making a
like application as provided for in section two of the orig-
inal act of which this is an amendment: Provided, That
such application shall not be made more than once in two
years and six months: And provided further, That sections
two and three of the said act of May twenty -eighth, eight-
een hundred and seventy-two, shall be construed so as to
apply to petty officers, seamen, and marines of the naval
service, as well as to soldiers of the Army.
951. Application for such truss shall be made by the
ruptured soldier to an examining surgeon for pensions, 22? 8^ IV?? 'p
whose duty it shall be to examine the applicant, and when 1^c> 1177^ B s
found to have a rupture or hernia, to prepare and forward
to the Surgeon-General an application for such truss
without charge to the soldier.
952. The Surgeon-General is authorized and directed top£j£-^8*l[ £*
purchase the trusses required for such soldiers, at whole- erafgeon"Gen"
sale prices, and the cost of the same shall be paid upon ^ ^IV8!?' p'
the requisition of the Surgeon -General out of any moneys J^c 1178 B g
in the Treasury not otherwise appropriated.
HISTORICAL NOTE. — The medical and surgical needs of the troops composing the
revolutionary armies were, at first, supplied by the surgeons who were attached to
the several regimental organizations, and no provision seems to have been made for
medical or surgical supervision, for the procurement and distribution of supplies, or
for the establishment of a general hospital service until 1775, when, by a resolution
of Congress dated July 27, 1777, the office of Director-General was established, who
was charged with the duties subsequently performed by the Purveyor-General of
Medical Supplies. The same enactment provided for a medical staff composed of four
surgeons and twenty surgeon' a mates, for an apothecary and two storekeepers, and
364 MILITARY LAWS OF THE UNITED STATES.
for hospital attendance at the rate of one nurse for every ten patients. Under the
authority thus conferred several general hospitals were established at points con-
veniently near to the several theaters of military operations. The medical establish-
ment thus created was modified by subsequent resolutions of Congress; the changes
caused by the resolution of April 22, 1777, being so extensive as to constitute a com-
plete reorganization of the department. As thus modified, however, the department
continued in existence until the disbandment of the revolutionary armies in 1783.
For the ten years succeeding the organization of the Government under the Con-
stitution the medical and surgical necessities of the troops were met by the medical
officers attached to the several organizations constituting the military establishment.
The act of March 2, 1799 (1 Stat. L., 721), passed in contemplation of a war with
France, but which was never fully executed, made provision for a complete medical
establishment consisting of a physician-general, an apothecary-general, and a pur-
veyor, together with such numbers of hospital surgeons and mates as the service
might require, who were made liable to duty in the field as well as in the hospitals
provided for in the statute. The act of March 2, 1799, was repealed and a Medical
Department established by section 3 of the act of February 23, 1802 (2 ibid., 133),
which fixed the strength of the department at two surgeons and twenty-five surgeon's
mates, who were "to be attached to garrisons and posts, and not to corps." During
the war of 1812 the necessities of the case were met by a temporary increase of the
department and by the allowance of surgeons to regiments called into the service
for the period of the war. By section 7 of the act of March 3, 1813 (ibid., 819), a
physician and Surgeon-General was authorized, whose powers and duties were to be
prescribed by the President of the United States. The office of apothecary-general
was created by the act of April 24, 1816 (3 ibid., 297), but was abolished by the act
of March 3, 1821. The office of Surgeon-General was created by section 2 of the act
of April 14, 1818 (ibid., 426).
At the general reduction of 1821 the Medical Department was reorganized and
made to consist of one Surgeon-General, eight surgeons, and forty-five assistant sur-
geons. Sec. 2, act. of March 2, 1821, 3 ibid., 615. By the act of June 28, 1832 (4
ibid., 500), four surgeons and ten surgeon's mates were added. The act of June 30,
1834 (ibid., 714) , contained a requirement that all candidates for appointment, or for
promotion to the grade of surgeon, should pass a professional examination as a con-
dition precedent to such appointment or promotion. By this enactment the pay of
surgeons was fixed at that allowed to majors, assistant surgeons were to receive for the
first five years' service the pay of first lieutenants, and after five years' service the pay
of captains. The examination for promotion to the grade of surgeon was to take
place after five years' service in the grade of assistant surgeon. By section 33 of the
act of July 5, 1838 (5 ibid., 256), seven additional surgeons were authorized, but by
section 4 of the act of August 23, 1842 (ibid., 512), a reduction of two surgeons and
ten assistant surgeons was ordered, the displaced officers being allowed three months'
pay when honorably discharged.
At the outbreak of the war with Mexico, under authority conferred by section 6
of the act of February 11, 1847 (9 ibid., 123), two surgeons and twelve assistant sur-
geons were added to the regular establishment, and regimental medical officers were
authorized for the volunteer troops at the rate of one surgeon and one assistant sur-
geon to each regiment, their service being restricted to the period of the existing
war. By the act of March 3, 1849 (ibid. , 351 ) , ten assistant surgeons were authorized,
and the requirement of the act of July 19, 1848, prohibiting the filling of vacancies
in the department was repealed. By the act of August 16, 1850 (11 ibid., 51), four
surgeons and eight assistant surgeons were added to the establishment; the force of
hospital stewards was increased to such number as the service might require, not to
exceed one to each military post; and cooks and nurses, detailed from the enlisted
men, were, for the first time, allowed extra-duty pay for service in post hospitals.
At the outbreak of the war of the rebellion regimental medical officers were again
authorized, one surgeon and one assistant being allowed to each regiment; by the
act of July 2, 1862 (12 Stat, L., 502) , an additional assistant was authorized.
By section 3 of the act of July 22, 1861 (ibid., 269), one surgeon to each brigade
was authorized, but by the act of July 2, 1862 (ibid., 502), these officers were merged
in the corps of forty surgeons and one hundred and twenty assistant surgeons created
by that statute for the period of the war.
By the act of June 21, 1861 (ibid., 378), four surgeons and four assistant surgeons
were added to the department. By the act of April 16, 1862 ibid., 378), the rank of
brigadier-general was conferred upon the Surgeon-General; the office of assistant
surgeon-general, with the rank and pay of colonel of cavalry was created and the addi-
tion of ten surgeons and twenty assistant surgeons was authorized; a corps of medical
inspectors was created, consisting of one inspector-general of hospitals (colonel) and
MILITARY LAWS OF THE UNITED STATES. 365
eight assistants (lieutenant-colonels), whose duties were denned by law, and who
were to hold office during the continuance of the war. By the act of December 27,
1862 (ibid., 633), eight medical inspectors were added and authority was conferred
upon these officers to discharge enlisted men for disability contracted in the military
service. By this statute a corps of medical cadets was established which continued
to exist until its gradual disbandment was brought about by the passage of the gen-
eral act of reorganization in 1866. By the act of May 20, 1862 (ibid., 378), six med-
ical storekeepers were authorized. By the act of February 25, 1865 (13 ibid., 437),
medical directors of armies in the field and of military departments were allowed the
rank and pay of colonels, and those attached to army corps the rank and pay of
lieutenant-colonels.
An ambulance service for the armies in the field was provided by the act of March
11, 1864 ( 13 ibid. , 20 ) . It was composed of officers and enlisted men detailed from the
several army corps and was carried on under the direction of their respective medical
directors. The duties of the corps were regulated by statute, and had to do, exclu-
sively, with the transportation of the sick and wounded and the removal of the
wounded from the battlefield. The corps ceased to exist at the disbandment of
the volunteer armies in 1865.
At the general reorganization of 1866 (sec. 17, act of July 28, 1866, 14 ibid., 334),
the strength of the department was fixed at one Surgeon-General, one assistant
surgeon-general, one chief medical purveyor, and four assistant purveyors (lieutenant-
colonels), sixty surgeons (majors), one hundred and fifty assistant surgeons, and five
medical storekeepers; it was also provided that three years' service, instead of five,
should be required of assistant surgeons before attaining the grade of captain. The
act of March 3, 1869 (15 ibid., 318), contained a requirement prohibiting appoint-
ments and promotions in the staff until otherwise ordered by Congress; but this
requirement was repealed as to the Medical Department by section 4 of the act of
June 23, 1874 (18 ibid., 244), which fixed the strength of the medical establishment
as follows: One Surgeon-General, one assistant surgeon-general, and one chief medical
purveyor (colonel), two assistant medical purveyors (lieutenant-colonels), fifty sur-
geons, and one hundred and fifty assistant surgeons, who were to receive the rank of
captain after five years' service, and five medical storekeepers; the number of con-
tract surgeons was fixed in this statute at seventy-five. By the act of June 26, 1876
(19 ibid., 61), the number of assistant surgeons was fixed at one hundred and twenty-
five, and the corps of medical storekeepers was discontinued, the reduction in both
cases being accomplished by a requirement forbidding the filling of vacancies until
the prescribed limit of numbers had been reached. By this statute the number of
surgeons with the rank of colonel was increased to four, and the number with the
rank of lieutenant-colonel to eight, the vacancies thus created to be filled by promo-
tion according to seniority.
By the act of March 1, 1887 (24 ibid., 435), the Hospital Corps was created; by the
act of July 27, 1892 (27 ibid., 276) , the titles of office in the Medical Department were
rearranged, officers holding the rank of colonels being arranged as assistant surgeons-
general and those having the rank of lieutenant-colonels as deputy surgeons-general,
and thereafter medical officers were to be assigned by the Secretary of War to such
duties as the necessities of the service might require.* By the act of August 18, 1894
(28 ibid., 403), the number of assistant surgeons was reduced to one hundred and ten;
but by the act of May 12, 1898 (930 ibid., 406), the number of officers of this grade
was increased to one hundred and twenty-five, and authority was conferred upon the
Surgeon-General to employ such number of contract surgeons as might be necessary.
By section 18 of the act of February 2, 1901 (31 Stat. L., 752), the permanent
strength of the department was fixed at one Surgeon-General with the rank of
brigadier-general, eight assistant surgeons-general with the rank of colonel, twelve
deputy surgeons-general with the rank of lieutenants-colonel, sixty surgeons with the
rank of major, and two hundred and forty assistant surgeons with the rank of captain
and first lieutenants mounted. A Nurse Corps ( female ) , and a corps of dental contract
surgeons were also added to the department.
CHAPTER XXII.
THE CORPS OF ENGINEERS.
Par. i Par.
953-972. The Corps of Engineers. I 1091-1097.
973-976. Civil engineers, draftsmen, etc.
977. Chief of Engineers to use Congres- ! 1098-1103.
sional Library. 1104-1106.
978-994. The public buildings and
grounds. ' 1107-1110.
995-1010. The Washington Aqueduct. 1111-1113.
1011-1020. The Engineer Commissioner j 1114-1117.
of the District of Columbia.
1021-1028. The Light-House Board. j 1118-1121.
1029-1043. The Mississippi River Com- ! 1122-1131.
mission.
1044-1048. The Missouri River Commis-
sion, i 1132-1133.
1049-1081. The California D6bris Com- I 1134-1146.
mission.
1082-1085. The Isthmian Canal Commis- | 1147-1150.
sion.
1086-1090. Fortifications.
The navigable waters of the
United States.
River and harbor works.
Contracts and purchases.
Lands.
Miscellaneous provisions.
Operation of canals, etc.
Bridges over navigable wa-
ters.
Harbor lines.
Injuries to Government
works; obstructions to nav-
igation.
The same, sunken vessels.
Deposits in New York Har-
bor.
Harbor regulations for the
District of Columbia.
THE CORPS OF ENGINEERS.
Par.
953. Organization.
954-959. Appointments, promotions, ex-
aminations.
960. Transfers; limits of duty.
Par.
I 961-970. Enlisted men of engineers.
971. Pontoons, vehicles, tools, arms, etc.
972. Travel expenses.
ORGANIZATION.
composition^ 953 The Corps of Engineers shall consist of one Chief
s'IecVii36iPR7^' °^ Engineers with the rank of brigadier-general, seven
colonels, fourteen lieutenant-colonels, twenty-eight majors,
forty captains, forty first lieutenants, and thirty second-
lieutenants.2 Sec. 2%, Act of February 2, 1901 (31 Stat.,
Z., 754).
1 For a note containing the statutory history of the Corps of Engineers see end of
chapter.
2 Section 22 of the act of February 2, 1901 (31 Stat. L., 754), contained the
requirement that "vacancies remaining in the grades of first and second lieutenant
may be filled by transfer of officers of the Regular Army, subject to such profes-
sional examination as may be approved by the Secretary of War."
366
MILITARY LAWS OF THE UNITED STATES. 367
APPOINTMENTS — PROMOTIONS — EXAMINATIONS.
954. The Chief of Engineers shall be selected as now
orovidedby law.1 Hid.
955. Hereafter vacancies iu the Corps of Engineers in
all other grades above that of second lieutenant shall be
filled, as far as possible, by promotion according to
seniority from the Corps of Engineers. Ibid.
956. Vacancies in the grade of second lieutenant not
tilled by transfer shall be left for future promotions from
the corps of cadets at the United States Military Acad-
emy. Ibid.
957. When any lieutenant of the Corps of Engineers W
Ordnance Corps has served fourteen years'
service as lieutenant, he shall be promoted to the rank of 98Msar9 3v 1
captain on passing the examination provided by the pre-
ceding section,2 but such promotion shall not authorize an
appointment to fill any vacancy, when such appointment m R
would increase the whole number of officers in the corps
beyond the number fixed by law; nor shall any officer be
promoted before officers of the same grade who rank him
in his corps.
FXAMINATIONS FOR PROMOTION.
958. No ofiicer of the Corps of Engineers or Signal Corps
below the rank of field officer shall be promoted to a higher 78Msar3)3'v181623; £
grade until he shall have been examined and approved by ^^t^Sf1
a board of three engineers, senior to him in rank. If an Sec* 12*6»B'S-
engineer officer fail on such examination he shall be sus-
pended from promotion for one year, when he shall be
reexamined before a like board. In case of failure on such
reexamination, he shall be dismissed from the service.3
Sec. 7, act of October 1, 1890 (26 Stat. Z., 653).
959. The examination of officers of the Corps of En- Examination
j f\ j T^ u a* of en&ineer or
gineers and Ordnance Department who were officers or ordnance officers
.. . who served dur-
enhsted men in the regular or volunteer service, either iningtherebeiiion.
-VT \ ^/r • ^ i <• Subjects.
the Army, Navy, or the Marine Corps, during the war of sec. 2, July 27,
the rebellion, shall be conducted by boards composed in
the same manner as for the examination of other officers of
their respective corps and department; and the examina-
tions shall embrace the same subjects prescribed for all
other officers of similar grades in the Corps of Engineers
1 Section 1193, Revised Statutes.
2 Section 1206, Revised Statutes.
3 For statutory regulations in respect to examinations for promotions, see the titlt
"Examinations for promotion" in the chapter entitled THE STAF DEPARTMENTS.
368 MILITARY LAWS OF THE UNITED STATES.
and' Ordnance Department, respectively. Sec. 2, act of
July 27, 1892 (27 Stat. Z., 276).
TRANSFERS.
flnStsof dutyrs: 960. Engineers shall not assume nor be ordered on any
2o^a?t' es'v^'p' duty beyond the line of their immediate profession, except
36s'ec.ii68,B.s. ^7 the special order of the President. They may, at the
discretion of the President, be transferred from one corps
to another, regard being paid to rank.
ENLISTED MEN OF ENGINEERS.
961> The enlisted force of the Corps of Engineers shall
Si i86i • s5? "f consist of one band and three battalions of engineers.
tffi(&& Sec- n-> act of February 2, 1901 (31 Stat. Z., 750).
144; 'July 28, 1866J s. 20, v. 14, p. 335; Mar. 2, 1899, s. 7, v. 30. p. 979; Feb. 2, 1901, s. 11, v. 31, p. 750.
theaArmyMnaer.2! 962- Tne enlisted force provided in section eleven of this
^'FelV2,i9bi;act and tne oncers serving therewith shall constitute a
a. 22, v. si, p! 754.' part Of the ijne Of the Army. Sec. 22, act of February 2,
1901(31 Stat. Z., 754).
FebQ2 1901 s. 963. The engineers' band shall be organized as now pro-
11, v. si, p. 750. yided by law for bands of infantry regiments. Sec. 11,
act of February 2, 1901 (31 Stat. Z., 750)..
Sar 8*1899 g4 964. Each infantry band shall consist of one chief musi-
v.3o,p.977. 'cian, one principal musician, one drum major, who shall
have the pay and allowances of a first sergeant, four ser-
geants, eight corporals, one cook, and twelve privates.
Sec. 4, act of March 2, 1899 (30 Stat. Z., 977).
Engineer bat- 965. Each battalion of engineers shall consist of oneser-
talion.
Feb. 2, 1901, s. geant-ma]or, one quartermaster-sergeant, and four com-
panies. Sec. 11, act of February 2, 1901 (31 Stat. Z. , 750).
officers of bat- 966. Battalion adjutants, battalion quartermasters, and
July ^28, 1866, c. appropriate officers to command thb (Xttnpanies and fat-
336';SMay \5*i8&, talions of engineer soldiers shall be detailed from the
S^Aug! f i86i; Corps of Engineers. Sec. 11, act of February 2, 1901 (31
c. 42, s. 4, v.' 12, p! cy^/ 7" 7KA\
287: Aug. 6, 1861, otM. L. , <5U).
c. 57,s.2, v.12, p. 317. Sec.1156, R.S.
^Batte ;aff, 9g7 officers detailed from the Corps of Engineers to
sec?ii56,n.s. serve as battalion adjutants and battalion quartermasters
and commissaries shall, while so serving, receive the pay
and allowances herein authorized for battalion staff officers
of infantry regiments. Ibid.
^Engineer com- 968 Each company of engineers shall consist of one
secfii65,B.s. first sergeant, one quartermaster-sergeant with the rank,
pay, and allowances of sergeant, eight sergeants, ten cor-
porals, two musicians, two cooks, thirty-eight first-class
and thirty -eight second-class privates. Tbid.
MILITARY LAWS OF THE UNITED STATES. 369
969. The President may, in his discretion, increase the j^ease>
number of sergeants in any company of engineers to
twelve, and the number of corporals to eighteen, the num-
ber of first-class privates to sixty-four, and the number of
second-class privates to sixty -four, but the total number of
enlisted men authorized for the whole Army shall not, at
any time, be exceeded. Ibid.
THE BATTALION OF ENGINEERS.
1. One company of bombardiers, sappers, and miners was authorized by the act of
April 29, 1812 (2 Stat. L., 720), to be officered from the Corps of Engineers; this
company was disbanded at the general reduction of 1821, act of March 2, 1821 (2
ibid., 615). A similar company, to be officered in thesame manner, was authorized
by the act of May 15, 1846 (9 ibid., 12); three additional companies were provided
for in section 4 of the act of August6, 1861 (10 ibid., 317). A sergeant-major, quar-
termaster-sergeant, and commissary-sergeant were authorized by section 4 of the act
of June 20, 1864 (11 ibid., 144). By section 20 of the act of July 28, 1866 (14 ibid.,
335) , the enlisted establishment of the Corps of Engineers was 'fixed at five com-
panies, with the battalion sergeant-major and quartermaster-sergeant already author-
ized by law. The grade of battalion commissary -sergeant was discontinued by sec-
tion 10 of the act of July 15, 1870 (15 ibid., 318). Section 7 of the act of March 2,
1899 (30 Stat. L., 979), contained the requirement that the battalion of engineers and
the officers serving therewith should constitute a part of the line of the Army; this
provision was reenacted in section 22 of the act of February 1, 1901 (31 Stat. L., 754) ; by
section 11 of the same enactment the enlisted force of the Engineer Corps was increased
to three battalions of engineer troops and a band.
2. For the organization of the infantry band, see paragraph 964, ante.
970. The enlisted men of the engineer battalion shall be
instructed in and perform the duties of sappers, miners, 21^4^' l*fi
and pontoniers, and shall aid in giving practical instruction ^4g'v3' i26pC287
in those branches at the Military Academy. They may be^\?'if^pC8i7
detailed by the Chief of Engineers to oversee and aidff v3'^1?^
laborers upon fortifications and other works in charge of Sec> l
the Engineer Corps, and, as fort keepers, to protect and
repair finished fortifications.
971. The Chief of Engineers is authorized, with the ap-
proval of the Secretary of War, to regulate and determine S^of pomoons
the number, quality, form, and dimensions of the necessary tojjjy eff 1846 c
vehicles, pontoons, tools, implements, arms, and other 2M- 1'^ P- j|
supplies for the use of the battalions of engineer soldiers.
s. 2, v. 12, p. 317; July 28, 1866, c. 299, s. 20,v.l4,
p. 335; Feb. 2, 1901, s. 11, v. 31, p. 750. Sec. 1152, R. S.
972. For travel expenses of officers on journey
approved by the Chief of Engineers and made for the 31Mpar^|' 1901' v<
purpose of instruction, one thousand five hundred dollars:
Provided, That the traveling expenses herein provided for
shall be in lieu of mileage or other allowances. Act of
March 2, 1901 (31 Stat. Z., 908).
22924—08 - 24
370
MILITARY LAWS OF THE UNITED STATES.
CIVIL ENGINEERS, DRAFTSMEN, ETC.
Par.
973. Employment.
974. Names, etc., to be reported to Con-
gress.
Par.
975. Employment of retired officers.
976. Draftsmen, etc. , in Engineer Bureau,
Employment of
civil engineers.
Mar. 29, 1867,
v. 15, p.
973. The Chief of Engineers may, with the approval of
e Secretary of War, employ such civil engineers, not
ec. 5253, R. s. exceeding five in number, for the purpose of executing the
surveys and improvements of western and northwestern
rivers, ordered by Congress, as may be necessary to the
proper and diligent prosecution of the same; and the per-
sons so employed may be allowed a reasonable compensa-
tion for their services, not to exceed the sum of three
thousand dollars a year.
974' Tlie Secretary of War shall report to Congress, at
re^i?epd0oyfflceenrs0f
Auge6C"i886 8 *ts nex^ an(^ each succeeding session thereof, the name
s, v. 24, p. 335. anc[ piace of residence of each civilian engineer employed
in the work of improving rivers and harbors by means
and as the result of appropriations made in this and suc-
ceeding river and harbor appropriation bills, the time so
employed, the compensation paid, and the place at and
work on which employed. Sec. 8, act of August 5, 1886
(24 Stat. Z., 335).
975. Section 2 of the act making appropriations for the
s. ?!Ive28!'p1235: legislative, executive, and judicial expenses of the Gov-
ernment for the fiscal year ending June thirtieth, eighteen
hundred and ninety -five, and for other purposes,1 ap-
proved July thirty-first, eighteen hundred and ninety-
four, shall not be so construed as to prevent the employ-
ment of any retired officer of the Army or Navy to do
work under the direction of the Chief of Engineers of the
United States Army in connection with the improvement
of rivers and harbors of the United States, or the pay-
ment by the proper officer of the Treasury of any amounts
agreed upon as compensation for such employment. Sec-
tion 7, act of June 3, 1896 (28 Stat. Z., 235).
inDJffi%moefncehfef 976, And [for] the services of skilled draftsmen, civil
°fMayiS?i896, v. engineers, and such other services as the Secretary of
29, p. 163. War may deem necessary may be employed only in the
office of the Chief of Engineers to carry into effect the
various appropriations for rivers1 and harbors, fortifica-
tions, and surveys to be paid from such appropriations:
Provided, That * the Secretary of War shall each
Section 2, act of July 31, 1894 (28 Stat. L., 205), par. 167, ante.
MILITARY LAWS OF THE UNITED STATES.
371
year, in the annual estimates, report to Congress the num-
ber of persons so employed and the amount paid to each.1
Act of May 28, 1896 (29 Stat. Z., 163).
977. The Joint Committee of Congress on the Library
is authorized to extend the use of the books in
Library of Congress to * * * the Chief of Engineers R^
of the Corps of Engineers United States Army, resident
in Washington, on the same conditions and restrictions
as members of Congress are allowed to use the Library.
J. R.< No. 41, August 28, 1890 (26 Stat. Z., 678).
Chief of Engi-
neers may use
thp books in Library
tue of Congress.
THE PUBLIC BUILDINGS AND GROUNDS.
Par.
978. Chief of Engineers to have charge.
979. Estimates.
980. Employees, restriction.
981. Control of banks of Potomac.
982. Regulations, by whom made.
983. Playgrounds for children.
984. Watchmen in public squares.
985. Ailanthus trees, prohibition.
986. Propagation of plants and shrubs.
Par.
987. Annual report of buildings, etc.
988. Furniture for Executive Mansion.
989. Annual inventory.
990. 991. Washington Monument, care,
etc.
992. Washington Monument Society.
993. Extra pay prohibited.
994. Rules for use of aqueduct bridge.
978. The Chief of Engineers shall have charge of the chief of Engi-
•i T i • i T^« • /• i • neers to have
public buildings and grounds in the District or Columbia, charge of public
, ,. . buildings and
under such regulations as may be prescribed by the Presi- grounds.
dent through the War Department, except those buildings 242^gi5'v8i<)> P'
and grounds which are otherwise provided for by law.2 f^^sV'v^iI'
p. 466. Sec.'l797, B.S.'
lrrhe acts of August 5, 1882 (22 Stat. L., 240), and March 3, 1883 (22 Stat. L., 552),
contained a similar provision, the amount in each case being fixed at $75,000. For
a continuation of the same provision see the act of July 7, 1884 (23 Stat. L., 181), in
which the amount appropriated was fixed at $56,000; the acts of March 3, 1885 (23
Stat. L., 412), July 31, 1886 (24 Stat. L., 195), March 3, 1887 (24 Stat. L., 617) , July 11,
1888 (25 Stat. L., 280) , February 26, 1889 (25 Stat. L., 730), July 11, 1890 (26 Stat. L.,
252), March 3, 1891 (26 Stat. L., 932), July 16, 1892 (27 Stat. L., 208), and March 3,
1893 (27 Stat. L., 699), in which the amount appropriated was fixed at $60,000;
July 31, 1894 (28 Stat. L., 188), March 2, 1895 (28 Stat. L., 789), and May 28, 1896
(29 Stat. L., 163), February 19, 1897 (ibid., 562), March 15, 1898 (30 Stat. L., 300),
February 24, 1899 (ibid., 872), and April 17, 1900 (31 Stat. L., 115), in which the
amount appropriated was fixed at $72,000.
The cost of services and articles needed in the office of the Chief of Engineers is
not properly chargeable to any appropriation for river and harbor improvements, or
for fortifications, or to any other appropriation for the military establishment, unless
expressly authorized by law. 3 Dig. 2d Compt. Dec., 321.
2 The act of August 14, 1876, transferred the duties relating to the care and super-
intendence of the Capitol building to the Architect of the Capitol, by the following
provision: "That the Architect of the Capitol shall have the care and superintend-
ence of the Capitol, including lighting, and shall submit, through the Secretary of the
Interior, estimates thereof : And provided further, That all the duties relative to the
Capitol building heretofore performed by the Commissioner of Public Buildings and
Grounds shall hereafter be performed by the Architect of the Capitol, whose office
shall be in the Capitol building." The act of March 3, 1877, contained the following
provision on the same subject: ' ' The Architect of the Capitol shall hereafter have the
372 MILITARY LAWS OF THE UNITED STATES.
appfo?riaffonsnd 979> ^11 estimates for public buildings and grounds in
242^15' v8™ p' cnarge of tne Chief of Engineers shall be approved and
57|ec 1798 K s submitted by the Secretary of War, through the Treasury
Department, as other estimates, to the two Houses of Con-
gress; and all appropriations which have been or may be
hereafter made for repairs or improvements of the public
buildings and grounds in the District of Columbia, and
now in charge of the Chief of Engineers, shall be expended
under the direction of the Secretary of War.
Employees in 980. The Chief of Engineers in charge of public build-
officeof public . . ,. fe . , A i • C • /E j
buildings. ings and grounds is authorized to employ in his office and
Mar. 3, 1871, c. ... . , J , ,.
113, s. i, v. 16, p. about the public buildmgfs and grounds under his control
479; May 8, 1872, & , ,
c.i40,s.i,v.i7,p. such number 01 persons for such employments, and at such
65; Jan. 20, 1874, . ' ~
c. 11, v. is, p. 4. rates of compensation, as may be appropriated for by Con-
Sec. 1799, B. S. J J
gress from year to year.
THE POTOMAC PARK.
banTof^the p£ 981- Tne f ollowing-described property shall be placed
t0M«r' i 15 v under the immediate jurisdiction and control of the Chief
31 HT. o, JLoyy, v. «
so, p. HOG. Of Engineers of the United States: The banks of the
Potomac River from the north line of the Arsenal grounds
to the southern curb line of N street south; also five hun-
dred linear feet of shore line in the flushing reservoir at
the foot of Seventeenth street west, and west from the
western curb of said street, including a levee one hundred
feet wide. Act of March 3, 1899 (30 Stat. L., 1106}.
Regulations 982. That said Commissioners and the Chief of Engineers
same. of the United States Army are hereby authorized and
empowered to make all needful rules and regulations for
the government and proper care of all the property placed
in their charge and under their respective control by the
provisions of section one of this act, and to annex such
reasonable penalties to said rules and regulations as will
care and superintendence of the Capitol, including lighting, and shall submit through
the Secretary of the Interior, annually, estimates thereof."
The officer in charge of the public buildings and grounds shall have the rank, payt
and emolument of a colonel. Act of March 3, 1873 (17 Stat. L., 535). Funds for the
execution of this statute have been provided in subsequent acts of appropriation.
The act of June 30, 1898 (30 Stat. L., 533) contained a requirement directing an
investigation to be made as to the feasibility of filtering the water supply of the city
of Washington, and the Chief of Engineers was required to be associated, as consult-
ing engineer, with the officer charged with the conduct of the investigation and the
preparation of the report.
By the act of March 3, 1899 (30 Stat L., 1120), the Chief of Engineers was charged
with the direction of the construction of the new building for the use of the Govern-
ment Printing Office.
By the act of March 2, 1893 (27 Stat. L., 532), the Chief of Engineers was made, ex
officio, a member of a commission to determine upon a plan for highways within the
District of Columbia.
MILITARY LAWS OF THE UNITED STATES. 373
secure their enforcement; and also to make and enforce
rules and regulations in regard to building and repairing
wharves, the rental thereof, and the rate of wharfage.1
All rents so collected shall be covered into the Treasury
of the United States, one-half to be placed to the credit of
the United States and one-half to the credit of the District
of Columbia. No lease made under the provisions of this
act shall extend beyond the period of ten years.2
That the Secretary of War is authorized to grant per-
mission to the Department of Agriculture for the tempo-
rary occupation of such area or areas of Potomac Park,
not exceeding a total of seventy-five acres in extent, as
may not be needed in any one season for the reclamation
or park improvement, the said areas to be used by the
Department of Agriculture as testing grounds: Provided,
That nothing herein contained shall be construed to change
the essential character of the lands so used, which lands
shall continue to be a public park, as provided in the act
of Congress approved March third, eighteen hundred and
ninety-seven : And provided further, That said area or
areas shall be vacated by the Department of Agriculture
at the close of any season upon the request of the Secre-
tary of War: And provided further, That the entire park
shall remain under the charge of the Secretary of War.
983. The officer in charge of public buildings and clJ11^oundfor
grounds may authorize the temporary use of a portion of v ^ ^ f^ 1890>
the Monument Grounds, or grounds south of the Execu-
tive Mansion or other reservations in the District of
Columbia, for a children's playground, under regulations
to be prescribed by him. Act of August 30, 1890 (£6,
Stat. L., 371).
984. Hereafter all watchmen provided for by the Uni ted h watchmen, to
States Government for service in any of the public squares po^er*6 1882
and reservations in the District of Columbia shall have v- *i P- ^
and perform the same powers and duties as the Metro-
politan police of the said District.3 Act of August 5, 1882
(M Stat. L.,%57).
985. No more ailanthus trees shall be purchased for ortnfegilanthus
planted in the public grounds. IO^P^O? 1853' v*
Sec. 1830, B.S.
1 For jurisdiction of the Commissioners of the District of Columbia over certain
wharf property and public spaces in the District of Columbia, see the act of March
3, 1899 (30 Stat. L., 1377), paragraph 1019 post.
2 The Chief of Engineers is not and never has been vested with authority to grant
licenses for the erection of wharves along the river front of the city of Washington.
3 The authority of the Metropolitan police was extended to include "all public
squares and places" by the act of July 21, 1876 (19 Stat. L., 102); see, also, act of
March 3, 1877 (19 Stat. L., 346).
374 MILITARY LAWS OF THE UNITED STATES.
986- Hereafter only such trees, shrubs, and plants shall
prjunfat2od 1878 ^e propagated at the greenhouses and nursery as are suit-
v. 20, p. 220. a'D}e f or planting in the public reservations, to which pur-
pose only the said productions of the greenhouses and
nursery shall be applied. Act of June W, 1878 (20 Stat.
L.,
Reports. 987. The Chief of Engineers shall, as superintendent of
Mar. 3,1829, C. ,,..,.,,.
51, s. 3, v. 4, p. 363; public buildings and grounds, and as superintendent
242fs. 15, v.ib,p! of the Washington Aqueduct, annually submit the follow-
573; Mar. 3, 1859, . * o .« w • .•
c. 84, s. i, v.n,p. ing reports to the Secretary of War in time to accompany
435; June 25, , • , £ , ^ ., „ r , J
1860, c. 211, s. i, the annual message of the President to Congress, namely:
'sec.i8i2, R.S. First. A report of his operations for the preceding year,
with an account of the manner in which all appropriations
for public buildings and grounds have been applied, in-
cluding a statement of the number of public lots sold, or
remaining unsold each year, of the condition of the public
buildings and grounds, and of the measures necessary to
be taken for the care and preservation of all public prop-
erty under his charge.
Furniture for 988. All furniture purchased for the use of the Presi-
8ioScu n dent's House shall be, as far as practicable, of domestic
May 22, 1826, s. .
2, v. 4, p. 194. manufacture.
inventory 'of 989. Hereafter a complete inventory, in proper books,
ecutive Mansion, shall be made annually by the steward, under the direc-
April 17, 1900, ,. . -,, ~> . i /. i i. i «i T
v. 31, p. 97. tion 01 the omcer in charge or public buildings and
grounds, of all the public property in and belonging to
the Executive Mansion, showing when purchased, use to
which applied, cost, condition, and final disposition, to be
submitted to Congress with annual report of the officer in
charge of public buildings and grounds.1 Act of April
17, 1900 (31 Stat. L., 97).
THE WASHINGTON MONUMENT.
M^umhentgcare 990< ^or ^e care an(* maintenance of the Washington
nance mainte-^onumen^ an(^ ^ne °Peration of the elevator and machin-
secretaryofwierrer3r connected therewith, namely: For one custodian, at
25°pt'533> 1888) v' one nundred dollars per month, one steam engineer, at
eighty dollars per month; one assistant steam engineer,
xln view of the requirements of the acts of August 14, 1876 (19 Stat. L., 147) , and
March 3, 1877 (ibid., 298, note to paragraph 978, ante), which operated to define and
restrict the jurisdiction of the Architect of the Capitol, it may be doubted whether
the provision of section 1832, Revised Statutes, requiring a report to be made to that
officer is now operative. The acts above referred to, taken in connection with sec-
tion 1797 of the Revised Statutes, would seem to vest jurisdiction over public build-
ings outside the Capitol grounds in the Chief of Engineers and the officer charged,
under his direction, with their immediate superintendence and control.
MILITARY LAWS OJ THE UNITED STATES. 375
at sixty dollars per month; one fireman, at fifty dollars
per month; one assistant fireman, at forty-five dollars
per month; one conductor of car, at seventy-five dollars per
month; one attendant on floor, at forty-five dollars per
month; one attendant on top, at forty-five dollars per
month; three night and day watchmen, at sixty dollars
each per month; * * * to be expended under the
direction of the Secretary of War, who is hereby and
hereafter charged with the custody, care, and protection
of the monument. Act of October 8, 1888 (25 Stat. L. , 533).
991. The joint commission created by the act of August ^p^S^
second, eighteen hundred and seventy-six, for the comple- lbid-
tion of the Washington Monument, having completed the
work intrusted to it, is, at its own request, dissolved, and
the unexpended balances of appropriations for this work,
as well as the amount herein appropriated, shall be ex-
pended under the direction of the Secretary of War. Ibid.
992. The Washington National Monument Societv Washington
. , & / National Monu-
is hereby continued with the same powers as provided inment society
the act of August second, eighteen hundred and seventy-
six, creating the joint commission aforesaid; and the Sec-
retary of War is hereby directed to set apart a room for
the deposit of the archives of the Washington National
Monument Society (as also for the records of the joint
commission dissolved) and for the continuous use of said
society in the building now being erected by the said
society with funds collected by it for its use and for the
public comfort. Ibid.
993. No pay or compensation other than is fixed by this hi^1>t^ pay prc>
title shall be allowed to any officer, employee, or laborer 25iUsyiV8i6'c'
embraced within the provisions thereof.1 25|ec 18§| R'g
994. The Chief Engineer is hereby directed to notify the fofufeUofa'aq^!
Washington and Georgetown Railway Company to remove dtj£ar "3^875 v
their railway track from the Washington aqueduct bridge 18> P- st-
over Rock Creek, within one year from the date of said
notice; and said company shall make such removal within
the year aforesaid, and have the right to lay their tracks
along Twenty-sixth street from Pennsylvania avenue to
M street north, and thence along M street into George-
town, to connect with their tracks on Bridge street; and
said Chief Engineer may establish and publish regulations
prohibiting the passage of heavily loaded wagons and car-
riages over said bridge. Act of March 3, 1875 (18 Stat.
Z., 393).
1 Title XXI, Revised Statutes.
376
MILITARY LAWS OF THE UNITED STATES.
THE WASHINGTON AQUEDUCT.
Par.
995. Chief engineer to superintend.
996. Duties.
997. No extra compensation.
998. Offices.
999. Kecords.
1000. Reports.
1001. Regulation of water supply.
1002. Decisions of Chief of Engineers.
1003. Expenditure of appropriations.
Par.
1004. Use of water in public buildings.
1005. Diversion of water prohibited.
1006. Lands about reservoir.
1007. Opening of pipes; penalty.
1008. Breaking pipes; penalty.
1009. Contamination of water.
1010. Pipes for public buildings and for
District of Columbia,
ne^ettof ^ave 995> The Chief of Engineers shall have the immediate
fnTon0^^8^-811?6^11^11^61106 °f the Washington Aqueduct, together
duct. with all rights, appurtenances, and fixtures connected
84Msari,3v.1iif p, with the same, and belonging to the United States, and
c?ai?8.ei? V*8i2i of all other public works and improvements in the Dis-
ise?*0?. ie??ars. I trict of Columbia in which the Government has an inter-
»?wf£'£?n, est, and which are not otherwise specially provided for by
3,'v. 15, 'p- 12- l^l
Sec. 1800, R.S. law.
ma^Ve^pre- ^96. He shall obey, in the discharge of the duties men-
deirted by Presi" tioned in the preceding section, such regulations, pursuant
45M*y42' v8 ?' p' t° law> as maJ ^e prescribed by the President, through the
c^^gV'v18!?' Department of War.
p'. 435; ' June' 25*, 1860, c. 211, s. 1, v. 12, p. 106; Mar.
Sec. 1801, R.S. 30, 1867, c. 20, s. 3, v. 15, p. 12.
Chief of Engi-
neers not to re-
998. He shall be furnished official apartments in one of
A
997< ^ne Chief of Engineers shall receive no compen-
tfon6 compensa" sation, other than his regular pay as an officer of the
84Msari3V1n9'c'C°rP8 °^ Engineers, for the services required of him
48|ec 1807 R s un(^er ^ne provisions of this title.
Apartments,
stationery, etc. . .
Mar. 3, 1859, c. the public buildings in the city of Washington, as may be
435. ' ' directed by the President, and shall be supplied by the
' Government with the stationery, instruments, books, and
furniture which may be required for the performance of
his duties.
He shall keep in his office a complete record of all
nd other property connected with or belonging
ec 1809 R s Washington Aqueduct and other public works under
his charge, together with accurate plans and surveys of
the public grounds and reservations in the District of
Columbia.2
ertvetorbe°ker<tp
84?*i8V u c>
1 But see paragraph 1014, post, for compensation of Engineer Commissioner.
2 For reports and estimates required of the Chief of Engineers in connection with
the superintendence of the Washington Aqueduct, see paragraphs 64 and 987, ante.
MILITARY LAWS OF THE UNITED STATES. 377
1000. The Chief of Engineers shall, as Superintendent J^^g^ c.
* * * of the Washington Aqueduct, annually submit l^.8^^^-
the following reports to the Secretary of War in time to £; 2j*|.s- j£v; ^j
accompany the annual message of the President to Con- }?59pC'4^'.s j^
®>> 1860> c- 211' s-'1' v. 12, 'p. 106.
Sec. 1812,B.S.
Second. A report of the condition, progress, repairs,
casualties, and expenditures of the Washington Aqueduct
and other public works under his charge.
1001. He and his necessary assistants are empowered to^
use all lawful means for the discharge of their duties; and,
particularly, he shall have full control over the Washington
Aqueduct, to regulate the manner in which the authorities cyk s. i, v.'n, p.'
of the District of Columbia may tap the supply of 'water to sec. ISIO,R.S.
the inhabitants thereof; and he shall stop the same when-
ever it is found to be no more than adequate to the wants
of the public buildings and grounds,
1002. His decision on all questions concerning the supply
of water, as provided in the preceding section, shall be sub-
ject to appeal to the Secretary of War only. Ej?£e8ni859 c
84, s. 1, v'. 11, p. 436!
Sec. 1811,B.S.
1003. All moneys appropriated or hereafter appropriated tio^P pf ™ paq^
for the Washington Aqueduct, and for the other public expended" h°w
works in the District of Columbia, not otherwise expressly 84^arj 3'v1^f19> c>
provided for by law, shall be expended under the direction ^;
of the Secretary of War. P- 62°: Mar- 30' 1867' c- 20-
1004. All officers in charge of public buildings in the
District of Columbia shall cause the flow of water in the ^^^ 1883>
buildings under their charge to be shut off from five o'clock
post meridian to eight o'clock ante meridian: Provided,
That the water in said public buildings is not necessarily
in use for public business. Act of March 3, 1883 (27 Stat.
L.,615).
1005. No portion of the water conveved or to be con- Diversion of
* water prohib-
veyed through or by means of the Washington Aqueduct, ite(i-
. t
or any appurtenance thereof, shall be diverted to the sup- 27. P- 644-
ply or use of any building, premises, or establishment
located outside of the existing limits of the District of
Columbia, Act of March 3, 1893 (27 Stat. L., 5U).
1006. The lands belonging to the United States and re^n0drs about
lying around the receiving-reservoir shall hereafter be con- br^°gcek Creek
trolled in connection with the Washington Aqueduct, and 18*pa39f ' 1875' v>
shall be under the charge and control of the officer in
charge of said aqueduct. Act of March 3, 1875 (18 Stat.
L.,393}.
378
MILITARY LAWS OF THE UNITED STATES.
Willful, etc.,
breaking, etc.,oi
10°7. No person, unless by consent of the Chief of Engi-
peMarty3, 1859, c. neers m charge of the public buildings and works, shall
84^8. 5, v. 11, p. tap or Open tne mams or pipes laid or hereafter to be laid
sec. isos, R.S. by ^ne United States, under a penalty of not less than
fifty nor more than five hundred dollars.
1008. Every person who maliciously breaks, injures, de-
c. faces, or destroys any main or pipe, bend, branch, valve,
436.8' 6> v> U| p' hydrant, service pipe, or any other fixture used for the dis-
Sec.i804,n.s. tribution of water throughout the streets and avenues, or
for its introduction into the houses, tenements, or buildings
of Washington and Georgetown, shall be punishable by
imprisonment in the county jail for not more than two
years.
m?kinci°water 1®®9. Every person who maliciously commits any act by
iDMare3 1859 c reason °^ which the supply of water, or any part thereof, to
84^s. 7, V. 11,' P. the cities of Washington and Georgetown becomes impure,
sec. isoe, B.S. filthy, or unfit for use, shall be fined not less than five
hundred nor more than one thousand dollars, or imprisoned
at hard labor in the District of Columbia not more than
three years nor less than one year.
pipes for use of 1010. No greater number of main pipes of the Washing-
blic buildings. jun-ui'J * ±
3, 1859, c. ton Aqueduct shall be laid at the expense of the United
States than are sufficient to furnish the public buildings,
offices, and grounds with the necessary supply of water.
The cost of any main pipe, for the supply of water to the
inhabitants of Washington and Georgetown, must be paid
by the District of Columbia in the manner provided by law.
pub:
84, s. 6, v. 11," p.
436.
Sec. 1805, U.S.
ENGINEER COMMISSIONER OF THE DISTRICT OF COLUMBIA.
ASSISTANTS TO ENGINEER COMMISSIONER.
Par.
1011. The District Commissioners.
1012. The same; appointment.
1013. Salary.
1014. Compensation of Engineer Com-
missioner.
1015. Detail; rank.
Par.
1016. Assistants to Engineer Commis-
sioner.
1017. Estimates.
1018. Powers of Commissioners.
1019. Control of wharf property.
0f°h?DtetSof 1011< Within twenty days after the approval of this act
C?neerbicomm?s- ^ne President of the United States, by and with the advice
sioner. an(j consent of the Senate, is hereby authorized to appoint
2, v. 20, p'. io3.' |wo persons, who, with an officer of the Corps of Engineers
of the United States Army, whose lineal rank shall be above
that of captain, shall be Commissioners of the District of
Columbia, and who, from and after July first, eighteen
hundred and seventy -eight, shall exercise all the powers
MILITARY LAWS OF THE UNITED STATES. 379
and authority now vested in the Commissioners of said
District, except as are hereinafter limited or provided,
and shall be subject to all restrictions and limitations and
duties which are now imposed upon said Commissioners.
The Commissioner who shall be an officer detailed, from
time to time, from the Corps of Engineers, by the Presi-
dent, for this duty, shall not be required to perform any
other, nor shall he receive any other compensation than
his regular pay and allowances as an officer of the Army.1
Sec. 2, act of June 11, 1878 (W Stab. L., 103).
1012. The two persons appointed from civil life shall, sioc^s;
at the time of their appointment, be citizens of the United
States, and shall have been actual residents of the District
of Columbia for three years next before their appointment,
and have, during that period, claimed residence nowhere
else, and one of said three Commissioners shall be chosen
president of the Board of Commissioners at their first
meeting, and annually and whenever a vacancy shall
occur thereafter; and said Commissioners shall each of
them, before entering upon the discharge of his duties,
take an oath or affirmation to support the Constitution of
the United States, and to faithfully discharge the duties
imposed upon him by law. Ibid.
1013. Said Commissioners appointed from civil life shall
each receive for his services a compensation at the rate of
five thousand dollars per annum, and shall, before enter-
ing upon the duties of the office, each give bond in the sum
of fifty thousand dollars, with surety as is required by
existing law. The official term of said Commissioners
appointed from civil life shall be three years, and until
their successors are appointed and qualified; but the first
appointment shall be one Commissioner for one year and
one for two years, and at the expiration of their respective
terms their successors shall be appointed for three years.
Neither of said Commissioners, nor any officer whatsoever
of the District of Columbia, shall be accepted as surety
upon any bond required to be given to the District of
Columbia; nor shall any contractor be accepted as surety
for any officer or other contractor in said District. Ibid.
1014. Hereafter the Engineer Commissioner shall te
entitled to receive such compensation, in addition to Ms
army pay and allowances, as will make his compensation 21> p- 46°-
1 Repealed as to the salary of the Engineer Commissioner by the act of March 3,
1881, par. 1014, post, which fixes his compensation at five thousand dollars per annum.
The act of June 11, 1878, repealed the requirement of the act of June 20, 1874 (18
Stat. L., 117), which authorized the detail of an officer of the Corps of Engineers to
act as engineer of the District of Columbia.
380 MILITARY LAWS OF THE UNITED STATES.
equal to five thousand dollars per annum, and a sum suffi-
cient to pay said additional compensation is hereby appro-
priated. Act of March 3, 1881 (21 'Stat. Z., 460).
1015. Hereafter such Engineer Commissioner may, in
the discretion of the President of the United States, be
iiis1890' v' 26> P' detailed from among the captains or officers of higher
grade having served at least fifteen years in the Corps of
Engineers of the Army of the United States. Joint reso-
lution No.. 7, December 24, 1890 (26 Stat. Z., 1113).
antehraeuthaorizesd: ™W' The President of the United States may detail
28fpg246.1894' v' f rom the Engineer Corps of the Army not more than three
officers, juniors to the engineer officer belonging to the
Board of Commissioners of said District, to act as assistants
to said Engineer Commissioner in the discharge of the
special duties imposed upon him by the provisions of this
act.1 Act of August 7, 1894 (%8 Stat. Z., 246).
juneiMsVs, v. 1017. The said Commissioners shall submit to the Sec-
20, p. KM. retary of the Treasury for the fiscal year ending June
thirtieth, eighteen hundred and seventy-nine, and annually
thereafter, for his examination and approval, a statement
showing in detail the work proposed to be undertaken by
them during the fiscal year next ensuing, and the estimated
cost thereof; also the cost of constructing, repairing, and
maintaining all bridges authorized by law across the
Potomac River within the District of Columbia, and also
all other streams in said District; the cost of maintaining
all public institutions of charity, reformatories, and
prisons belonging to or controlled wholly or in part by the
District of Columbia, and which are now by law supported
wholly or in part by the United States or District of Colum-
bia; and also the expenses of the Washington Aqueduct
and its appurtenances; and also an itemized statement and
estimate of the amount necessary to defray the expenses
of the government of the District of Columbia for the
next fiscal year: Provided, That nothing herein contained
shall be construed as transferring from the United States
authorities any of the public works within the District of
Columbia now in the control or supervision of said author-
ities. Act of June 11, 1878 (20 Stat. Z., 104).
powers of pis- 1018. The Commissioners of the District of Columbia
eioners. Limita- shall have all the powers and be subject to all the duties
June 10, 1879, and limitations provided in chapter eight of the Revised
v 21 p 9
Statutes of the United States relating to the District of
1This statute replaces the provisions contained in section 5, act of June 11, 1878
(20 Stat. L., 107), which authorized the detail of two officers of engineers, junior in
rank to the Engineer Commissioner, as assistants to that officer.
MILITARY LAWS OF THE UNITED STATES. 381
Columbia, excepting such powers and duties as belong
to the Chief of Engineers:1 Provided, That water-main
taxes and water rents shall be uniform in said District.
Act of June 10, 1879 (21 Stat. Z., 9).
1019. With the exceptions hereinafter provided, the control of
Commissioners of the District of Columbia shall have the Ttc&1
exclusive charge and control of all wharf property belong- v. 30, p. 1377.
ing to the United States or to the District of Columbia
within said District, including all the wharves, piers, bulk-
heads, and structures thereon and waters adjacent thereto
within the pier lines, and all slips, basins, docks, water
fronts, land under water, and structures thereon, and the
appurtenances, easements, uses, reversions, and rights be-
longing thereto, which are now owned or possessed by the
United States or the District of Columbia, or to which
they or either of them is or ma}T become entitled, or which
they or either of them may acquire under the provisions
hereof or otherwise; and said Commissioners of the Dis-
trict of Columbia shall have exclusive charge and control
of the repairing, building, rebuilding, maintaining, alter
ing, strengthening, leasing^ and protecting said property
and every part thereof, and all the cleaning, dredging,
and deepening necessary in and about the same within the
pier lines. Said Commissioners are also hereby author-
ized and empowered to make all needful rules and regula-
tions for the government and control of all wharves, piers,
bulkheads, and structures thereon, and waters adjacent
thereto within the pier lines, and all the basins, slips, and
docks, with the land under water, in said District not
owned by the United States or the District of Columbia:
Provided, That the following-described property shall be
placed under the immediate jurisdiction and control of the
Chief of Engineers of the United States: The banks of
the Potomac River from the north line of the Arsenal
Grounds to the southern curb line of N street south; also
five hundred linear feet of shore line in the Flushing Res-
ervoir' at the foot of Seventeenth street west, and west
from the western curb of said street, including a levee one
hundred feet wide.2 Act of March 3, 1899 (30 Stat. Z.,
1377).
1 For powers and duties of the Commissioners of the District of Columbia in respect
to the Washington Aqueduct, see paragraph 1018, ante. See also the act of June 20,
1874 (18 Stat. L., 74), creating the District Commission.
8 For authority to make regulations in respect to the wharf property and other
open spaces in the District of Columbia vested in the District Commissioners and
the Chief of Engineers see par. 982, ante.
382
MILITARY LAWS OF THE UNITED STATES.
THE LIGHT-HOUSE BOARD.
Par.
1021. Organization.
1022. Detail of engineer officers.
1023. Duties.
1024. Contracts and purchases.
1025. The same; proposals.
Par.
1026. Inspectors.
1027. Restriction on compensation.
1028. Members, etc., not to be interested
in purchases.
HouhseeBoardht
1021< The President shall appoint two officers of the
f high rank, two officers of the Corps of Engineers
ns'ec 4663 R s °^ ^e Army, and two civilians of high scientific attain-
ments, whose services may be at the disposal of the Presi-
dent, together with an officer of the Navy and an officer of
engineers of the Army, as secretaries, who shall constitute
the Light-House Board.
superintend- 1022. The President shall cause to be detailed from the
tion.etc., of light- Engineer Corps of the Arm}7, from time to time, such offi-
°MarS'3, i83i, c. cers as may be necessary to superintend the construction
37, s. 9, v. 9, p. 629. , ',. , ,. ,
Sec. 4664, R.s. and renovation of light-houses.
contractsmust 1023. The Light- House Board shall cause to be prepared
be founded on , A , . ,, . , , i rr»
official plans and by the engineer secretary or the board, or by sucn omcer
on a vote of the ,, . ,, ,, . , , , ., , \ ,,
board. of engineers of the Army as may be detailed for that serv-
Aug. 31, 1852, c. . . './ ,. ,. j,
112, s. 14, v. 10, p. ice, all plans, drawings, specifications, and estimates of
cost, of all illuminating and other apparatus, and of con-
struction and repair of towers, buildings, &c., connected
with the Light-House Establishment, and no bid or con-
tract shall be accepted or entered into except upon the
decision of the board at a regular or special meeting and
through their properly authorized officers.
Regulation of 1024. All materials for the construction and repair of
teriais, etc. light-houses, light vessels, beacons, buoys, and so forth,
shall be procured by public contracts, under such regula-
tions as the board may from time to time adopt, subject to
the approval of the Secretary of the Treasury, and all
works of construction, renovation, and repair shall be
made by the orders of the board, under the immediate
superintendence of their engineer secretary, or of such
engineer of the Army as may be detailed for that service.
erec5onamustbe 1025. No contract for the erection of any light-house
e made except after public advertisement for pro-
2 1867 c Posa^s ^n sucn f orm and manner as to secure general notice
149, s. i, V. 14' p. thereof, and the same shall only be made with the lowest
bidder therefor, upon security deemed sufficient in the
judgment of the Secretary of the Treasury.1
1 For statutory requirements in respect to the acquisition of jurisdiction over lands
proposed to be acquired for light-house purposes, see sections 4661 and 4662 of the
Revised Statutes.
n£nt forVpropo-
MILITAEY LAWS OF THE UNITED STATES.
383
1026. An officer of the Army or Navy shall be assigned Light-house in-
to each district as a light-house inspector, subject to the Aug. 31, 1352,
s 12, v. 10, p. 120.
orders of the Light-House Board; and shall receive for 'sec.467i,B.s.
such service the same pay and emoluments that he would
be entitled to by law for the performance of duty in the
regular line of his profession, and no other, except the
legal allowance per mile when traveling under orders con-
nected with his duties.
1027. No additional salary shall be allowed to any civil, UJSn ^ompenSJ
military, or naval officer on account of his being employed etc?
on the Light-House Board, or being in any manner attached
to the Light-House Service.
1028. No member of the Light-House Board, inspector,
light-keeper, or other person in any manner connected
with the Light-House Service, shall be interested, either
directly or indirectly, in any contract for labor, materials, 12°^c> 4680?B s>
or supplies for the Light-House Service, or in any patent,
plan, or mode of construction or illumination, or in any
article of supply for the Light-House Service.1
sec. 4679,n. s.
n con"
THE MISSISSIPPI RIVER COMMISSION.
Par.
1037. Material for improvements.
1038. Water gauges.
1039. Piers and cribs.
1040. South Pass; surveys.
1041. The same; regulations.
1042. The same; definition.
1043. Snag boats on Upper Mississippi.
v- 21' p- 37-
1879>
Par.
1029. Establishment.
1030. Composition.
1031. Location of headquarters.
1032. Duties; surveys.
1033. The same; plans, estimates.
1034. The same; works.
1035. Engineer secretary. •
1036. Annual report.
1029. A commission is hereby created, to be called
" The Mississippi River Commission," to consist of seven sl^-ne
members. Act of June 28, 1879 (21 Stat. L. , 37).
1030. The President of the United States shall, by and
with the advice and consent of the Senate, appoint seven
commissioners, three of whom shall be selected from the
Engineer Corps of the Army, one from the Coast and
Geodetic Survey, and three from civil life, two of whom
shall be civil engineers. And any vacancy which may
occur in the commission shall in like manner be filled by
the President of the United States; and he shall designate
one of the commissioners appointed from the Engineer
Corps of the Army to be president of the commission.
1 For statutes denning the jurisdiction and functions of the Light-House Board, see
sections 4653-4680 of the Kevised Statutes, and the act of June 23, 1874 (18 Stat. L.,
221).
384 MILITARY LAWS OF THE UNITED STATES.
The commissioners appointed from the Engineer Corps
of the Army and the Coast and Geodetic Survey shall
receive no other pay or compensation than is now allowed
them by law, and the other three commissioners shall
receive as pay and compensation for their services each
the sum of three thousand dollars per annum; and the
commissioners appointed under this act shall remain in
office subject to removal by the President of the United
States, Sec. #, ibid.
and^eneraleof- 1031- The headquarters and general offices of said com-
ficp|b i8a?9oi'v mission shall be located at some city or town on the Mis-
si, p. 792. sissippi River, to be designated by the Secretary of War,
and the meetings of the commission, except such as are
held on Government boats during the time of the semi-
annual inspection trips of the commission, shall be held at
said headquarters and general offices, the times of said
meetings to be fixed by the president of the commission,
who shall cause due notice of such meetings to be given
members of the commission and the public. Act of Feb-
ruary 18, 1901 (31 Stat. L., 792)..
veys direct sur" 1032> & s^a1^ ke ^e ^uty °^ sa^ commission to direct
an^taii of assist- and complete such surveys of said river, between the Head
sec. 3, md. Of the Passes near its mouth to its head waters, as may be
in progress, and to make such additional surveys, exami-
nations, and investigations, topographical, hydrographical,
and hydrometrical, of said river, and its tributaries, as
may be deemed necessar}^ by said commission to carry out
the objects of this act. And to enable said commission to
complete such surveys, examinations, and investigations,
the Secretary of War shall, when requested by said com-
mission, detail from the Engineer Corps of the Army such
officers and men as may be necessary, and shall place in the
charge and for the use of said commission such vessel or
vessels and such machinery and instruments as may be
under his control and may be deemed necessary. And the
Secretary of the Treasury shall, when requested by said
commission, in like manner detail from the Coast and Geo-
detic Survey such officers and men as may be necessary,
and shall place in the charge and for the use of said com-
mission such vessel or vessels and such machinery and in-
struments as may be under his control and may be deemed
necessary. And the said commission may, with the ap-
proval of the Secretary of War, employ such additional
force and assistants, and provide, by purchase or other-
wise, such vessels or boats and such instruments and
MILITARY LAWS OF THE UNITED STATES. 385
means as may be deemed necessary. Sec. 3, act of June
28, 1879 (21 Stat. L., 37).
1033. It shall be the duty of said commission to take into gjj^fiwd
consideration and mature such plan or plans and estimates
as will correct, permanently locate, and deepen the chan-
nel and protect the banks of the Mississippi River; improve
and give safet}^ and ease to the navigation thereof; prevent
destructive floods; promote and facilitate commerce, trade,
and the postal service; and when so prepared and matured, Report.
to submit to the Secretary of War a full and detailed report
of their proceedings and actions, and of such plans, with
estimates of the cost thereof, for the purposes aforesaid,
to be by him transmitted to Congress: Provided, That the
commission shall report in full upon the practicability,
feasibility, and probable cost of the various plans known
as the jetty system, the levee system, and the outlet system,
as well as upon such others as the}r may deem necessary.1
Sec. 4-) ibid.
1 The duties, under the law, of the Missouri River Commission, composed partly
of civilians, relate exclusively to certain work quite other than the establishing of
harbor lines. It is therefore not, as a body, subject to the directions of the Secre-
tary of War in the matter of establishing harbor lines, nor are the civilian members
subject individually to his orders. Thus, while they may consent to establish such
lines, it is preferable for the Secretary to cause such work to be done through engi-
neer officers of the Army. Dig. Opin. J. A. G., par. 2272.
Held, that the Mississippi River Commission derived no authority, from the stat-
utes relating to its functions, to make allotments of the moneys appropriated by
Congress for the improvements proposed. Its province is to indicate to Congress
what improvements are needed and how much should be appropriated therefor. It
has no authority to disburse money appropriated. An allotment made by it is to be
treated by the Secretary of War as a recommendation only. The Secretary may
adopt the recommendation, but in the disbursement should not omit any of the
works specially designated by Congress in the appropriation act. Ibid., par. 2270.
Held, that the maps prepared by the Mississippi Commission, under appropriations
by Congress, may legally be disposed of at the discretion of the commission, it
being evidently intended by Congress that the information therein contained should
be made public and circulated for the public use and benefit. Ibid., par. 2269.
Held (January, 1891), that the allowances for the traveling expenses of the civilian
members of the Mississippi and Missouri River commissions were not regulated by
any order of the War Department regulating the allowances of civil employees of
the military establishment, but were such as are fixed by statute. They are not
thus necessarily $4 per diem, since the statute law provides for the reimbursement of
their actual necessary outlay, which may be more or less than this allowance. Ibid.,
par. 2271.
The salaries and traveling expenses of the members of the Mississippi River Com-
mission who are appointed from civil life (Congress having failed to make a specific
appropriation therefor) can not lawfully be defrayed out of the fund for the Missis-
sippi River improvement. The application of such fund to that object would be
inconsistent with section 3678, Revised Statutes. XVIII Opin. Att. Gen. 463.
The traveling expenses of the three civilian members of the Mississippi River
Commission and of the member appointed from the Coast and Geodetic Survey
include their actual traveling expenses only for all authorized travel on public duty.
3 Dig. Compt. Dec., 219.
In making appropriations for the improvement of the Mississippi River, Congress
evidently contemplates that there shall be provided at public expense, on the vessel
transporting the members of the Mississippi River Commission on their trips of
22924—08 26
MILITARY LAWS OF THE UNITED STATES.
wOT°ks°nstruct 1034- Tne said commission may, prior to the completion
sec. 5, ibid. of ajj ^e surveys an(J examinations contemplated by this
act, prepare and submit to the Secretary of War plans,
specifications, and estimates of cost for such immediate
works as, in the judgment of said commission, may consti-
tute a part of the general system of works herein contem-
plated, to be by him transmitted to (Jongress. Sec. 5, ibid
. 1035- The Secretary of War may detail from the- Engi'
neer Corps of the Army of the United States an officer to
act as secretary of said commission. l Sec. 6, iMd.
Re- 103g ^he Secretary of War shall cause the manuscript
o!' s' °f tne Annual Report of the Chief of Engineers and subor-
dinate engineers, relating to the improvement of rivers and
harbors, and the reports of the Mississippi and Missouri
River commissions to be placed in the hands of the Public
Printer on or before the fifteenth day of October in each
year. * * •* Sec. 8, act of August 11, 1888 (25 Stat.
Z.,400).
MISCELLANEOUS PROVISIONS RESPECTING THE MISSISSIPPI RIVER.
1037. Whenever in the prosecution and maintenance of
obtained**' h°w ^ne improvement of the Mississippi River and other rivers,
inspection, such table comforts only as are generally provided by steamboat compa-
nies for the traveling public. Ibid.
When an appropriation is available for the payment of accounts for " salaries and
traveling expenses of the Mississippi River Commission, and for salaries and traveling
expenses of assistant engineers, and for office expenses and contingencies," the fol-
lowing expenses are properly payable therefrom under existing laws: ( 1 ) The salaries
of the three members of the commission appointed from civil life, at the rate of $3,000
each per annum, and of those only, the salaries of the other members being other-
wise provided for; (2) the salaries of all civilian assistant engineers employed under
the commission, but not that of the secretary of the commission or of any other assist-
ant engineer detailed from the Corps of Engineers; (3) the actual traveling expenses
only, for all authorized travel on public duty, of the three civilian members of the
commission and of the member appointed from the Coast and Geodetic Survey; (4)
the actual traveling expenses only, for all authorized travel on public duty, of all
civilian assistant engineers employed under the commission; (5) the mileage of the
three members of the commission appointed from the Engineer Corps of the Army,
at the rate of 8 cents per mile, only under circumstances when mileage is authorized
by law, for all travel required of them by the commission pertinent to the objects for
which it was constituted, travel so required being travel under orders within the
meaning of section 2 of the act of July 24, 1876, chapter 226; (6) the mileage of the
secretary of the commission and of any other assistant engineer detailed from the
Corps of Engineers and employed under the commission, at the rate of 8 cents per
"mile, only when mileage is authorized by law, for all travel required of them by t he-
commission pertinent to the objects for which it was constituted; (7) the office expen-
ses of the commission; (8) the contingent expenses of the commission. Ibid., p. 217.
Thesalaries accruing to the civilian members of the Mississippi River Commission,
during a period when the regular appropriation for their payment is not available, can
not legally be paid from funds appropriated for the improvement of the Mississippi
River, unless provision is specifically made therefor in the act appropriating such
funds. Ibid., p. 218. See, also, XVIII Opin. Att. Gen., p. 463.
1 Vouchers in support of payments of mileage to officers of the Army belonging to
or employed by the Mississippi River Commission should be accompanied by orders
for the journeys performed or by other evidence that they were required by the
commission and were pertinent to' the objects for which it was constituted. Ibid.,
p. 217.
MILITARY LAWS OF THE UNITED STATES. . 387
harbors, and public works for which appropriations are iJ^v.^fp^:
herein made it becomes necessary or proper, in the judg-
ment of the Secretary of War, to take possession of
material found on bars and islands within the river banks,
or other material tying adjacent or near to the line of any
of said works and needful for their prosecution or main-
tenance, the officers in charge of said works may, when
they can not agree as to the price with the owners thereof,
in the name of the United States take possession of and
use the same after first having paid or secured to be paid
the value thereof, which may have been ascertained in the
mode provided by the laws of the State wherein such prop-
erty or material lies: Provided, however, That when the
owner of such property or material shall fix . a price for
the same which in the opinion of said officer in charge,
shall be reasonable, he may take the same at such price
without further delay. The Department of Justice shall
represent the interests of the United States in the legal
proceedings under this act. Sec. 6, act of July 5, 188 '4
(23 Stat. Z., 148).
1038. The Secretary of War is hereby authorized and onw$fer ffgffgs
directed to have water gauges established, and daily obser- 5^tSiSr and
vations made of the rise and fall of the Lower Mississippi R^eb40 2^ /g871-
River and its chief tributaries, at or in the vicinity of 59|- .9.
J oCC. •>_•>_, u.N.
Saint Louis, Cairo, Memphis, Helena, Napoleon, Provi-
dence, Vicksburgh, Red River Landing, Baton Rouge,
and Carrollton, on the Mississippi, between the mouth of
the Missouri and the Gulf of Mexico; and at or in the
vicinity of Fort Leaven worth, on the Missouri; Rock
Island, on the Upper Mississippi; Louisville, on the Ohio;
Florence, on the Tennessee; Jacksonport, on the White
River; Little Rock, on the Arkansas, and Alexandria, on
the Red River, and at such other places as the Secretary
of War may deem advisable. The expenditure for the
same shall be made from the appropriation for the improve-
ment of rivers and harbors, but the annual cost of the
observations shall not exceed the sum of five thousand
dollars,
1039. The owners of sawmills on the Mississippi River Piers and cribs
and the Saint Croix River in the States of Wisconsin and Sppi River. *
Minnesota are authorized and empowered, under the direc- 278, vr'i?, p.'eo6;
tion of the Secretary of War, to construct piers or cribs in f/4 '
front of their mill property on the banks of the river, for
the protection of their mills and rafts against damage by
floods and ice: Provided, however, That the piers or cribs
388 MILITARY LAWS OF THE UNITED STATES.
so constructed shall not interfere with or obstruct the
navigation of the river. And in case any pier or jcrib
constructed under authority of this section shall at any
time and for any cause be found to obstruct the naviga-
tion of the river the Government expressly reserves the
right to remove or direct the removal of it at the cost and
expense of the owners thereof.
souta'pas^Mis1 1040< ^or ^e PurPose °f securing the uninterrupted
sife?P4RAuer'ii examinati°n8 and surveys at the South Pass of the Missis -
18 ' V54 S^PP^ Riyer? as provided for in the act of March third, eight-
A rcmtion
made permanent, een hundred and seventy-five,1 the Secretary of War, upon
the application of the Chief of Engineers, is hereby author-
ized to draw his warrant or requisition from time to time
upon the Secretary of the Treasury for such sums as may
be necessary to do such work, not to exceed in the aggre-
gate for each year the amount appropriated in this act for
such purpose: Provided, however, That an itemized state-
ment of said expenditures shall accompany the Annual
Report of the Chief of Engineers.2 Sec. 4, act of Augmt
11, 1888 (25 Stat. Z., j#4).
fo?n!^gatVonnof 104L The Secretary of War be, and is hereby, author-
dSSp&iSre?**' *ze(* to mak'e sucn ru^es an(* regulations for the navigation
i j£c< 5>o^ugxSJ' °f ^ne South Pass of the Mississippi River as to him shall
looo, V. 25, p. 424.
seem necessary or expedient for the purpose of preventing
any obstruction to the channel through said South Pass
and any injury to the works therein constructed. Sec. o, act
of August 11, 1888 (25 Stat. Z., 4&4).
south pass. 1042. The term " South Pass," as herein employed, shall
Penalty for vi- , , . J
ol?M?' construed as embracing the entire extent of channel be-
tween the upper ends of the works at the head of the Pass
and the outer or sea end of the jetties at the entrance
from the Gulf of Mexico; and any willful violation of any
rule or regulation made by the Secretary of War in pur-
suance of this act shall be deemed a misdemeanor, for
which the owner or owners, agent or agents, master or
pilot of the vessel so offending shall be separately or col-
lectively responsible, and on conviction thereof shall be
punished by a fine not exceeding two hundred and fifty
dollars or by imprisonment not exceeding three months,
at the discretion of the court.3 Ibid.
1 18 Stat. L., 464.
2 Statutory provision for the termination of the agreement with the late James B.
Eads for the maintenance of a channel through the South Pass was made in section 3
of the act of June 6, 1900 (31 Stat. L., 584) .
5 See also section 3, act of September 19, 1890 (26 Stat. L., 452).
MILITARY LAWS OF THE UNITED STATES. 389
1043. For the purpose of securing the uninterrupted u
work of operating snag boats on the Upper Mississippi pls^V7r'Aug n
River, and of removing snags, wrecks, and other obstruc- 18l8ppro^ria'«on
tions in the Mississippi River, the Secretary of War, upon fumade perma-
the application of the Chief of Engineers, is hereby author-
ized to draw his warrant or requisition from time to time
upon the Secretary of the Treasury for such sums as may
be necessary to do such work, not to exceed in the aggre-
gate for each year the amounts appropriated in this act
for such purposes: Provided, Jwwever, That an itemized
statement of said expenses shall accompany the Annual
Report of the Chief of Engineers. Sec. h act o
11, 1888(25 Stat. Z.,
THE MISSOURI RIVER COMMISSION.
Par.
1044. Establishment,
1045. Composition.
1046. Duties.
Par.
1047. Supervision of expenditures,
1048. Annual report.
1044. A commission to be called the Missouri River Creation
Commission is hereby created, to consist of five members.
1045. The President shall nominate and, by and with the
advice and consent of the Senate, appoint five comrnis- comixwitton.
sioners, three of whom shall be selected from the Corps of 23, p. . 144.
Ibid,.
Engineers of the Arm}T and two from civil life, one of
whom at least shall be a civil engineer; and he shall in like
manner fill any vacancy in said commission; and he shall
designate one of the commissioners appointed from the
Corps of Engineers to be president of the commission.
The commissioners appointed from the Corps of Engineers
shall receive no other pay or compensation than is allowed
them by law, and the other two commissioners shall each
receive for their services pay at the rate of two thousand
five hundred dollars per annum, out of any money appro-
priated for the Missouri River; and all said commissioners
shall remain in office subject to removal by the President
of the United States.1 TUd.
1 The nomination to the Senate, as a member of the Missouri River Commission, of
Clarence L. Chaffee, vice Richard S. Berlin, the confirmation of Mr. Chaffee by the
Senate, "agreeably to the nomination," the signing of his commission, his taking
the oath of office, appearance at a meeting of the commission and entering upon the
duties of the office on July 6, 1897, constitute notice to Mr. Berlin of his removal on
that date. 4 Compt. Dec., 466. Upon notice to the incumbent of an office by a
person who has been appointed thereto that he is ready to assume the duties of the
office, the removal of the incumbent is complete, and the appointee becomes invested
with the office and entitled to the compensation thereof. Ibid., 601.
390 . MILITAEY LAWS OF THE UNITED STATES.
1046. It shall be the duty of said commission to super-
intend and direct such improvement of said river and to
carry into execution such plans for the improvement of
the navigation of said river from its mouth to its head
waters as may now be devised and in progress, and to
continue and complete such surveys as may now be in
progress, and to make such additional > surveys, examina-
tions, and investigations, topographical, hydrographical,
and hydrometrical, and to consider, devise, and mature
such additional plan of plans, and all such estimates as
may be deemed necessary and best, to obtain and maintain
a channel and depth of water in said river sufficient for
the purposes of commerce and navigation and to accom-
plish the objects of this act; and to enable the commission
to perform the duties assigned them the Secretary of War
is hereby authorized and directed to transfer to and place
under the control and superintendence of said commission
all such vessels, barges, machinery, and instruments, and
such plant as may now IDC provided, devised, or in use on
said river, from appropriations heretofore made for said
river, or other sources, and when thereto requested by
said commission to detail from the Corps of Engineers
such officers and men as may be necessary, and to place in
the charge of said commission any such vessels, machin-
ery, and instruments under his control as may be deemed
necessary. And said commission may, with the approval
of the Secretary of War, employ^ such additional force and
assistants, and provide, by purchase or otherwise, such
additional vessels, boats, machinery, instruments, and
means as may be deemed necessary; to be paid for by
appropriations made or to be made for said river. IMd.
supervision of 1047. The said commission shall, under the direction and
appropriations, with the approval of the Secretary of War, superintend,
control, and expend for the purposes of this act all appro-
priations or unexpended balances heretofore made for the
improvement of said river, and which may hereafter be made
for said river, or so much thereof as may be necessary, and
shall prepare and submit, through the Chief of the Engineer
Corps, to the Secretary of War, to be by him transmitted
to Congress at the beginning of the regular session in De-
cember of each year, a full and detailed report of all their
proceedings and actions, and of all such plans and systems
of work as may now be devised and in progress and carried
out by them, and of all such additional plans and systems
of works as may be devised and matured b}^ them, with
MILITARY LAWS OF THE UNITED STATES.
391
full and detailed estimates of the cost thereof, and state-
ments of all expenditures made by them; and the Secretary
of War may detail from the Corps of Engineers or other
corps of the Army an officer to act as secretary of the secretary,
commission, to aid them in their work; and all money
hereby or hereafter appropriated for the improvement of
said Missouri River shall be expended under the direction
of the Secretary of War in accordance with the plans,
specifications, and recommendations of said commission
when such plans, specifications, and recommendations shall
have been approved by Congress.1 Ibid.
1048. The Secretary of War shall cause the manuscript
of the * Missouri River Commission to be placed in S-8'V-26'P- ^
the hands of the Public Printer on or before the fifteenth
day of October in each year. Sec. #, act of August 11, 1888
(25 Stat. Z., 400).
Annual report.
August 11, 1888,
THE CALIFORNIA DEBRIS COMMISSION.
Par.
1049. Establishment.
1050. Composition; compensation.
1051. Jurisdiction.
1052. Duties.
1053. Surveys; inspections.
1054. Condition of navigable channels.
1055. Annual report.
1056. Hydraulic mining defined.
1057. The same; petition to engage in.
1058. Contents of petition.
1059. The same; joint petition.
1060. The same; notice; publication;
hearing.
1061. Decisions of commission to be made
* within thirty days.
1062. Plans of works submitted to com-
mission.
1063. Opening of works; conditions.
1064. Allotment of expenses of construc-
tion.
1049. A commission is hereby created, to be known
the California Debris Commission, consisting of
members. The President of the United States shall, by
1 The duties, under the law, of the Missouri River Commission, composed partly
of civilians, relate exclusively to certain work quite ether than the establishing of
harbor lines. It is therefore not, as a body, subject to the directions of the Secretary
of War in the matter of establishing harbor lines, nor arc the civilian members sub-
ject individually to his orders. Thus, while they may consent to establish such
lines, it is preferable for the Secretary to cause such work to be done through engi-
neer officers of the Army. Dig. Opiii. J. A. G., 684, par. 2272.
Par.
1065. Limits of debris washed away.
1066. Modification of orders.
1067. Forfeiture of privilege.
1068. Inspection of mines.
1069. Use of public lands, etc.
1070. Injury to works; penalty.
1071. Violations of statute; penalty.
1072. Tax on gross proceeds.
1073. Debris fund created.
1074. Consultation with State commis-
sion.
1075. Expenditure of debris fund.
1076. Impounding dams, etc.
1077. Treasurer to receive funds from
State of California.
1078. State appropriations.
1079. The same; contractors.
1080. The same; hired labor.
1081. Travel expenses of commissioners.
1892> v-
392
MILITARY LAWS OF THE UNITED STATES.
Regulations,
Sec. 2, ibid.
jurisdiction.
and with the advice and consent of the Senate, appoint the
commission from officers of the Corps of Engineers, United
States Army. Vacancies occurring therein shall be filled
in like manner. It shall have the authority and exercise
the powers hereinafter set forth, under the supervision of
the Chief of Engineers and direction of the Secretary of
War.1 Act of March 1, 1892 (27 Stat. L. , 507}.
1050. Said commission shall organize within thirty
days after its appointment by the selection of such officers
as may be required in the performance of its duties, the
same to be selected from the members thereof. The mem-
bers of said commission shall receive no greater compensa-
tion than is now allowed by law to each, respectively, as
an officer of said Corps of Engineers. It shall also adopt
rules and regulations, not inconsistent with law, to govern
f , ' , ' ,
its deliberations ana prescribe the method or procedure
under the provisions of this act. Sec. 2, ibid.
1051. The jurisdiction of said commission, in so far as
the same affects mining carried on by the hydraulic pro-
cess, shall extend to all such mining in the territory
drained by the Sacramento and San Joaquin river systems
*u ^ne State of California. Hydraulic mining, as defined in
section eight hereof, directly or indirectly injuring the navi-
gability of said river systems, carried on in said territory
other than as permitted under the provisions of this act is
hereby prohibited and declared unlawful. Sec. 3, ibid.
1052. It shall be the duty of said commission to mature
.. , " . .
and adopt such plan or plans, from examinations and sur-
veys already made and trom sucn additional examinations
and surveys as it may deem necessary, as will improve the
navigability of all the rivers comprising said systems,
deepen their channels, and protect their banks. Such plan
or plans shall be matured with a view of making the same
effective as against the encroachment of and damage from
debris resulting from mining operations, natural erosion,
or other causes, with a view of restoring, as near as prac-
ticable and the necessities of commerce and navigation de-
mand, the navigability of said rivers to the condition
1 The act of June 14, 1880 (21 Stat. L., 196), required the Secretary of War to cause
such surveys, etc. , to be made as would enable a scheme to be devised to prevent
further injury to the navigable waters of California, due to the deposit in the same
of de"bris from the mines.
The members of the California Debris Commission do not hold civil office within
the meaning of section 1222 of the Revised Statutes, nor does section 1224 of the
Revised Statutes necessitate their withdrawal from the Engineer Corps. XX Opin.
Att. Gen., 604.
mining
plsecib3t1wa
Duty of com
mission.
plans.
MILITARY LAWS OF THE UNITED STATES. 393
existing in eighteen hundred and sixty, and permitting
mining b}^ the hydraulic process, as the term is understood
in said State, to be carried on, provided the same can be
accomplished without injury to the navigability of said
rivers or the lands adjacent thereto. Sec. 4-> ibid-
1053. It shall further examine, survey, and determine surveys of stor-
the utility and practicability, for the purposes hereinafter bns, reservoirs,
indicated, of storage sites in the tributaries of said rivers sec.6,<wd.
and in the respective branches of said tributaries, or in the
plains, basins, sloughs, and tule and swamp lands adjacent
to or along the course of said rivers, for the storage of
de*bris or water or as settling reservoirs, with the object of
using the same by either or all of these methods to aid in
the improvement and protection of said navigable rivers
by preventing deposits therein of debris resulting from
mining operations, natural erosion, or other causes, or for
affording relief thereto in flood time and providing sufficient
water to maintain scouring force therein in the summer sea-
son; and in connection therewith to investigate such hy-hy^aui1^11^
draulic and other mines as are now or may have been other mmes> etc-
worked by methods intended to restrain the debris and
material moved in operating such mines by impounding
dams, settling reservoirs, or otherwise, and in general to
make such study of and researches in the hydraulic mining
industry as science, experience, and engineering skill may
suggest as practicable and useful in devising a method or
methods whereby such mining may be carried on as afore-
said. Sec. 5, ibid.
1054. The said commission shall from time to time note ..Noting
tion of navigable
the conditions of the navigable channels of said river sys-ch*nnfl8:..»
J Sec. 6, ^b^d.
terns, by cross-section surveys or otherwise, in order to
ascertain the effect therein of such hydraulic mining oper-
ations as may be permitted by its orders and such as is
caused by erosion, natural or otherwise. Sec. #, ibid.
1055. Said commission shall submit to the Chief of
Engineers, for the information of the Secretary of War,
on or before the fifteenth day of November of each year, a
report of its labors and transactions, with plans for the
construction, completion, and preservation of the public
works outlined in this act, together with estimates of the
cost thereof, stating what amounts can be profitably ex-
pended thereon each year. The Secretary of War shall
thereupon submit same to Congress on or before the meet-
ing thereof. Sec. 7, ibid.
394 MILITARY LAWS OF THE UNITED STATES.
mi'5ng"Snd 1056> For the PurP°ses of this act " hydraulic mining"
roc6- and " mining by the hydraulic process," are hereby de-
' clared to have the meaning and application given to said
terms in said State. Sec. £, ibid.
me 1057. The individual proprietor or proprietors, or in
?omm°i?sion * * h case °^ a corporation its manager or agent appointed for
sec. 9, «id. that purpose, owning mining ground in the territory in
the State of California mentioned in section three hereof,
which it is desired to work by the hydraulic process, must
file with said commission a verified petition, setting forth
such facts as will comply with law and the rules pre-
scribed by said commission. Sec. 9, ibid.
b JmhiingeSaim 1058. Said petition shall be accompanied by an instru-
accSnmoendum? ment duly executed and acknowledged, as required by the
infecr°nn?&Vcfc' law °^ the said State, whereby the owner or owners of
such mine or mines surrender to the United States the
right and privilege to regulate by law, as provided in this
act, or any law that may hereafter be enacted, or by such
rules and regulations as may be prescribed by virtue
thereof, the manner and method in which the debris
resulting from the working of said mine or mines shall be
restrained, and what amount shall be produced therefrom;
it being understood that the surrender aforesaid shall not
contents of pe- be construed as in any way affecting the right of such
sec. 10, ibid, owner or owners to operate said mine or mines by any
other process or method now in use in said State: Pro-
vided, That they shall not interfere with the navigability
of the aforesaid rivers. Sec. 10, ibid.
1059. The owners of several mining claims situated so
as to require a common dumping ground or dam or other
restraining works for the debris issuing therefrom in one
or more sites may file a joint petition setting forth such
facts in addition to the requirements of section nine
, hereof; and where the owner of a hydraulic mine or own-
ers of several such mines have and use common dumping
sites for impounding debris or as settling reservoirs,
which sites are located below the mine of an applicant not
entitled to use same, such fact shall also be stated in said
petition. Thereupon the same proceedings shall be had
as provided for herein. Sec. 11, ibid.
Notice of peti- 1060. A notice, specifying briefly the contents of said
tion, etc.. to be . . , ,, . . ' . .
published. petition and fixing a time previous to which all proofs are
to be submitted, shall be published by said commission in
io newspaper or newspapers of general circulation in the
communities interested in the matter set forth therein. If
published in a daily paper such publication shall continue
MILITARY LAWS OF THE UNITED STATES. 395
for at least ten days ; if in a weekly paper, in at least three
issues of the same. Pending publication thereof said com-
mission or a committee thereof shall examine the mine and
premises described in such petition. On or before the time plan?) etc.! may
so fixed all parties interested, either as petitioners or con-b
testants, whether miners or agriculturists, may file affida-
vits, plans, and maps in support of their respective claims.
Further hearings, upon notice to all parties of record, may Heariu»s.
be granted by the commission when necessary. Sec. 1%,
ibid.
1061. In case a majority of the members of said com- cjj™rabte De-
mission, within thirty days after the time so fixed, concur th|JJy ify^id
in a decision in favor of the petitioner or petitioners, the
said commission shall thereupon make an order directing
the methods and specifying, in detail, the manner in which
operations shall proceed in such mine or mines ; what re-
straining or impounding works, if facilities therefor can
be found, shall be built and maintained ; how and of what
material ; where to be located ; and, in general, set forth
such further requirements and safeguards as will protect
the public interests and prevent injury to the said navi-
gable rivers and the lands adjacent thereto, with such
further conditions and limitations as will observe all the
provisions of this act in relation to the working thereof
and the payment of taxes on the gross proceeds of the
same : Provided, That all expense incurred in complying
with said order shall be borne by the owner or owners of
such mine or mines. Sec. 13, ibid.
1062. Such petitioner or petitioners must, within a rea- beplsu" mitfed to
sonable time, present plans and specifications of all works eo^miff °£;-d
required to be built in pursuance of said order for exami-
nation, correction, and approval by said commission; and menVSf^orkse~
thereupon work may immediately commence thereon under supervision.
the supervision of said commission or representative
thereof attached thereto from said Corps of Engineers,
who shall inspect same from time to time. Upon comple- completion.
tion thereof, if found in every respect to meet the require-
ments of the said order and said approved plans and
specifications, permission shall thereupon be granted to Permission to
x r commence min-
the owner or owners of such mine or mines to commence ins-
mining operations, subject to the conditions of said order
and the provisions of this act. Sec. 1^ ibid.
1063. No permission granted to a mine owner or owners^J?0^*1^:
under this act shall take effect, so far as regards the work- jJons01^ opera"
ing of a mine, until all impounding dams or other restrain- Sec- 15' *bui-
ing works, if any are prescribed by the order granting such
396 MILITARY LAWS OF THE UNITED STATES.
permission, have been completed, and until the impounding
dams or other restraining* works or settling reservoirs
provided by said commission have reached such a stage
as, in the opinion of said commission, it is safe to use the
et?asumctent?ysame: Provided, however. That if said commission shall be
protected. of £ne Opinion that the restraining and other works already
constructed at the mine or mines shall be sufficient to pro-
tect the navigable rivers of said systems and the work of
said commission, then the .owner or owners of such mine
or mines may be permitted to commence operations. l Sec.
15, ibid.
ex^ensSforcon- 1064. In case the joint petition referred to in section
moif dumps °etce^even ^ere°f *s granted, the commission shall fix the
sece'i6'«wa respective amounts to be paid by each owner of such mines
toward providing and building necessary impounding dams
or other restraining works. In the event of a petition
being filed after the entry of such order, or in case the
impounding dam or dams or other restraining works have
already been constructed and accepted by said commission,
subsequent the commission shall fix such amount as mav be reason-
petitioners to
Prmi°er eumping a^e ^or ^e privilege of dumping therein, which amount
shall be divided between the original owners of such
of^ST^ment impounding dams or other restraining works in proportion
owners>riginalt° the amount respectively paid by each party owning
same. The expense of maintaining and protecting such
^Maintenance, jomt dams or works shall be divided among mine owners
using the same is such proportion as the commission shall
Location. determine. In all cases where it is practicable, restraining
and impounding works are to be provided, constructed,
and maintained by mine owners near or below the mine
or mines before reaching the main tributaries of said navi-
gable waters. Sec. 16, ibid.
Limit of debris 1065. At no time shall any more debris be permitted to
washed away. ^ .
sec. 17, ibid, be washed away from any hydraulic mine or mines situa-
ted on the tributaries of said rivers and the respective
branches of each, worked under the provisions of this act,
than can be impounded within the restraining works
erected. Sec. 17, ibid.
etc10^! orders" s> 1066. The said commission may at any time*, when the
sec. is, ma. condition of the navigable rivers or when the capacities
1The act ol March 1, 1893 (27 Stat. L., 507), requiring certain conditions precedent
to be performed by persons desiring to engage in hydraulic mining in the territory
comprised in the Sacramento and San Joaquin river systems, is to be construed as
entirely prohibiting hydraulic mining in said territory until application has been
made and permission given in accordance with the terms of the act. U. S. r. North
Bloomfield Gravel Mining Co., 81 Fed. Rep., 243.
MILITARY LAWS OF THE UNITED STATES. 397
of all impounding and settling facilities erected by mine
owners or such as may be provided by Government au-
thority require same, modify the order granting the priv-
ilege to mine by the hydraulic mining process so as to
reduce amount thereof to meet the capacities of the facili-
ties then in use, or if actually required in order to protect
the navigable rivers from damage, may revoke same until
the further notice of the commission. Sec. 18, ibid.
1067. An intentional violation on the part of a mine Forfeiture for
violating condi-
owner or owners, company or corporation, or the agents tions.
or employees of either, of the conditions of the order
granted pursuant to section thirteen, or such modifications
thereof as may have been made by said commission, shall
work a forfeiture of the privileges thereby conferred, and
upon notice being served by the order of said commission
upon such owner or owners, company or corporation, or
agent in charge, work shall immediately cease. Said com-
mission shall take necessary stops to enforce its orders in
case of the failure, neglect, or refusal of such owner or
owners, company or corporation, or agents thereof , to com-
ply therewith, or in the event of any person or persons,
company or corporation working by said process in said
territory contrary to law. See. 19, ibid.
1068. Said commission, or a committee therefrom, or
officer of said corps assigned to duty under its orders,
shall, whenever deemed necessary, visit said territory and
all mines operating under the provisions of this act. A
report of such examination shall be placed on file. Sec.
20, ibid.
1069. The said commission is hereby granted the right, use of public
* " lands and mate-
to use any of the public lands of the United States, or any naj.^ ^ ^
rock, stone, timber, trees, brush, or material thereon or
therein for any of the purposes of this act; and the Sec-
retary of the Interior is hereby authorized and requested,
after notice has been filed with the Commissioner of the
General Land Office by said commission, setting forth
what public lands are required by it under the authority
of this section, that such land or lands shall be withdrawn
from sale and entry under the laws of the United States.
Sec. %1, ibid.
1070. Any person or persons who willfully or mali-
ciously injure, damage, or destroy, or attempt to injure,
damage, or destroy any dam or other work erected under
the provisions of this act for restraining, impounding, or
settling purposes, or for use in connection therewith, shall
398 MILITARY LAWS OF THE UNITED STATES.
be guilty of a misdemeanor, and upon conviction thereof
penalty. shall be fined not to exceed the sum of five thousand dol-
lars or be imprisoned not to exceed five years, or by both
such fine and imprisonment in the discretion of the court.
Sec. 82, ibid.
tbJr°aettiaImiji! 1071. And any person or persons, company or corpora-
dez?*c?nor' tion, their agents or employees, who shall mine b}^ the
hydraulic process directly or indirectly injuring the navi-
gable waters of the United States, in violation of the pro-
visions of this act, shall be guilty of a misdemeanor, and
upon conviction thereof shall be punished by a fine not
Penalty. exceeding five thousand dollars or by imprisonment not
exceeding one year, or by both such fine and imprison-
tivehen opera~ment in the discretion of the court: Provided, That this
section shall take effect on the first day of Ma}% eighteen
hundred and ninety -three. Ibid.
1072. Upon the construction by the said commission of
dams or other works for the detention of debris from
hydraulic mines and the issuing of the order provided for
by this act to any individual, company, or corporation to
work any mine or mines by hydraulic process, the indi-
vidual, company, or corporation operating thereunder
working any mine or mines by hydraulic process, the
debris from which flows into or is in whole or in part
restrained by such dams or other works erected by said
commission, shall pay a tax of three per centum on the
gross proceeds of his, their, or its mine so worked; which
tax of three per centum shall be ascertained and paid in
accordance with regulations to be adopted by the Secretary
of the Treasury, and the Treasurer of the United States
is hereby authorized to receive the same. Sec. 23, ibid.
fund " created1 s 1073. All sums of money paid into the Treasury under
Expenditures this section shall be set apart and credited to a fund to
from same by the
e°SSlssion' ^e known as the " Debris fund," and shall be expended by
said commission under the supervision of the Chief of
Engineers and direction of the Secretary of War, in
addition to the appropriations made by law, in the con-
struction and maintenance of such restraining works and
settling reservoirs as may be proper and necessary: Pro-
vided, That said commission is hereby authorized to re-
ceive and pay into the Treasury from the owner or owners
of mines worked by the hydraulic process, to whom per-
mission may have been granted so to work under the pro-
visions hereof, such money advances as may be offered to
aid in the construction of such impounding dams or other
MILITAEY LAWS OF THE CTN1TED STATES. 399
restraining works, or settling reservoirs, or sites therefor,
as may be deemed necessary by said commission to protect
the navigable channels of said river systems, on condition
that all moneys so advanced shall be refunded as the said
tax is paid into the said debris fund: And provided further,
That in no event shall the Government of the United States
be held liable to refund same except as directed by this
section. Ibid.
1074. For the purpose of securing harmony of action m^om mission
and economy in expenditures in the work to be done by ^^f^f J^
the United States and the State of California, respectively, negeJJ 24 ^^
the former in its plans for the improvement and protec-
tion of the navigable streams and to prevent the depos-
iting of mining debris or other materials within the same,
and the latter in its plans authorized by law for the recla-
mation, drainage, and protection of its lands, or relating
to the working of hydraulic mines, the said commission is
empowered to consult thereon with a commission of engi-
neers of said State, if authorized by said State for said
purpose, the result of such conference to be reported to
the Chief of Engineers of the United States Army, and if
by him approved shall be followed by said commission.
Sec. ^4, ibid.
1075. Said commission, in order that such material as &
is now or may hereafter be lodged in the tributaries of £ bree
the Sacramento and San Joaquin river systems, resulting above %>adtCof
from mining operations, natural erosion, or other causes,
shall be prevented from injuring the said navigable rivers
or such of the tributaries of either as may be navigable and
the land adjacent thereto, is hereby directed and empow-
ered, when appropriations are made therefor by law, or
sufficient money is deposited for that purpose in said debris
fund, to build at such points above the head of navigation
in said rivers and on the main tributaries thereof, or
branches of such tributaries, or at any place adjacent to
the same which, in the judgment of said commission will
effect said object (the same to be of such material as will
insure safety and permanency), such restraining or im-
pounding dams and settling reservoirs, with such canals,
locks, or other works adapted and required to complete
same. Sec. 25, ibid.
1076. The recommendations contained in Executive Doc-
ument Numbered Two hundred and sixty -seven, Fifty-fi
Congress, second session, and Executive Document Num-
bered Ninety-eight, Forty-seventh Congress, first session,
400 MILITARY LAWS OF THE UNITED STATES.
as far as they refer to impounding dams, or other restrain-
ing works, are hereby adopted, and the same are directed
18' to be made the basis of operations. The sum of fifteen
thousand dollars is hereby appropriated, from moneys in
the Treasury not otherwise appropriated, to be immedi-
ately available, to defray the expenses of said commission.
Ibid.
theunitedrstetes 1077' Tlie Treasurer of the United States is hereby
to receive funds authorized to receive from the State of California, through
appropriated bv > e
g^^teof0a"*the debris commission of said State, or other officer
29Jun232' 18%I v' thereunto duly authorized, any and all sums of money that
have been, or may hereafter be, appropriated by said State
for the purposes herein set forth. And said sums when
so received are hereby appropriated for the purposes above
named, to be expended in the manner above provided. A.ct
of June 3, 1896 (29 Stat. Z., 838).
ure*o?iState' a d 1078. For the purpose of carrying out the following pro-
propriations. vision of the river and harbor act of eighteen hundred and
ninety -six: "For the construction of restraining barriers
for the protection of the Sacramento and Feather rivers in
California, two hundred and fifty thousand dollars, such
restraining barriers to be constructed under the direction
of the Secretary of War in accordance with the recommen-
dations of the California Debris Commission, pursuant to
the provisions of and for the purposes set forth in sec
tion twenty -five of the act of the Congress of the United
States entitled, 'An act to create the California Debris
Commission and regulate hydraulic mining in the State of
California,' approved March firrt, eighteen hundred and
ninety-three: Provided, That the Treasurer of the United
States be, and he is hereby, authorized to receive from
the State of California, through the debris commission of
said State, or other officer thereunto duly authorized, any
and all sums of money that have been or may hereafter
• be appropriated by said State for the purposes herein set
forth. And said sums when so received and hereby appro-
priated for the purposes above named, to be expended in
the manner above provided," and for the further purpose
of making available to the United States the appropriation,
or any part thereof, made by the provisions of an act of
the legislature of the State of California, approved March
seventeenth, eighteen hundred and ninety-seven, entitled
"An act to amend an act entitled 'An act to provide for
the appointment, duties, and compensation of a debris
MILITARY LAWS OF THE UNITED STATES. 401
commissioner, and to make appropriation to be expended
under his directions in the discharge of his duties as such
commissioner, approved March twenty-fourth, eighteen
hundred and ninety-three,'" and of said amended act, the
Secretary of War is hereby authorized, -in the preparation
for and construction of the proposed works authorized
and appropriated for by the aforesaid provisions, to enter
into an agreement that the contractor shall look solely to thttg Contractor
the State of California for one-half of such expense, to be £ stote°for°hai:f
paid out of said State appropriation, and the United States expense8> etc-
shall in no manner be liable for said one-half. Act of
July 1, 1898 (30 Stat. Z., 631).
1079. The provisions of an act of Congress entitled l(Sl^& £l
"An act making appropriations for sundry civil expenses Sne-hal/ oncost
of the Government for the fiscal year ending June thirtieth, ^j&Sx^-im, v.
eighteen hundred and ninety-nine, and for other purposes," 30> p* 1148>
approved July first, eighteen hundred and ninety-eight,
authorizing the Secretary of War, in expending certain
specified appropriations in the preparation for and con-
struction of certain works for the restraining or impound-
ing of mining debris in the State of California, to enter
into a contract or contracts wherein the contractor or con-
tractors shall look solely to that State for one-half of such
expense, and that the United States shall in no wise be
liable for said one-half, are hereby extended to any appro-
priations, when made, that may hereafter be made for
said purposes.1 Act of March 3, 1899 (30 Stat. Z., liy$).
1080. The Secretary of War, in carrying out the pro-
visions of any act of Congress providing for the restrain-
ing or impounding of mining debris in California, may, in
his discretion, when in his judgment the aggregate of ap-
propriations already made by said State and Congress and
available therefor are sufficient to complete the same,
undertake the works necessary thereto by hired labor and
by purchase of supplies and materials therefor, and may
accept payments on account thereof as the work progresses
under and according to the provisions of the acts of the
legislature of said State for such purposes. Ibid.
1081. Officers of the commission traveling on duty in
connection with the commission's work may be paid their ^prohibited e~
actual traveling expenses in lieu of mileage allowed by Ibid"
law, and shall hereafter receive no mileage. Act of March
3, 1899 (30 Stat. Z., 1109).
*The act of July 1, 1898 (30 Stat. L., 631), contained a similar requirement.
22924—08 26
402 MILITARY LAWS OF THE UNITED STATES.
THE ISTHMIAN CANAL COMMISSION.
commission. 1082 The president of the United States of America be,
3 ^a3o, pA8i5o.8' an^ he *s hereby, authorized and empowered to make full
and complete investigation of the Isthmus of Panama with
a view to the construction of a canal by the United States
across the same to connect the Atlantic and Pacific oceans;
that the President is authorized to make investigation of
any and all practicable routes for a canal across said Isthmus
of Panama, and particularly to investigate the two routes
known respectively as the Nicaraguan route and the
Panama route, with a view to determining the most prac-
ticable and feasible route for such calial, together with the
proximate and probable cost of constructing a canal at each
of two or more of said routes. And the President is further
authorized to investigate and ascertain what rights, privi-
leges and franchises, if any, may be held and owned by any
corporations, associations, or individuals, and what work,
if any, has been done by such corporations, associations,
or individuals in the construction of a canal at either or
any of said routes, and particularly at the so-called Nicara-
guan and Panama routes, respectively; and likewise to
ascertain the cost of purchasing all of the rights, privileges,
and franchises held and owned by any such corporations,
associations, and individuals in any and all of such routes,
particularly the said Nicaraguan route and tb^ said Panama
route; and likewise to ascertain the probable or proxi-
mate cost of constructing a suitable harbor at each of the
termini of said canal, with the probable annual cost of
maintenance of said harbors, respectively. And generally
the President is authorized to make such full and complete
investigation as to determine the most feasible and prac-
ticable route across said Isthmus for a canal, together with
the cost of constructing the same and placing the same under
the control, management, and ownership of the United
States. Sec. 3, act of March 3, 1899 (30 Stat. L., 1150).
empSylSTeJc11' 1083- To enable the President to make the investiga-
sec. 4, ibid, tions and ascertainments herein provided for he is hereby
authorized to employ in said service any of the engineers
of the United States Army, at his discretion, and, likewise,
to employ any engineer in civil life, at his discretion, and
any other persons necessary to make such investigation,
and to fix the compensation of any and all of such engi-
neers and other persons. Sec. h ibid.
MILITARY LAWS OF THE UNITED STATES.
403
1084. For the purpose of defraying the expenses
sary to be incurred in making the investigations herein pro- 8i°£c 5 md
vided for there is hereby appropriated, out of any money
in the Treasury not otherwise appropriated, the sum of
one million dollars, or so much thereof as may be neces-
sary, to be disbursed by order of the President. Sec. 5,
1085. The President is hereby requested to report to Sec- MMi
Congress the results of such investigations, together with
his recommendations in the premises. Sec. 6, ibid.
FORTIFICATIONS.
Par.
1086. Procurement of sites.
1087. Donations of land.
1088. Procedure in emergency.
Par.
lu«9. Disbursements.
1090. Injury to mines, torpedoes, etc. ;
penalty.
1086. Hereafter the Secretary of War may cause pro-ofps^ecsurement
ceedings to be instituted in the name of the United States ^fij8' 1890' v-
in any court2 having jurisdiction of such proceedings for
lSee also the title "Board of Ordnance and Fortification," in the chapter entitled
THE ORDNANCE DEPARTMENT. See also par. 696, ante.
The act of February 10, 1875, contained the following provision: " For torpedoes
for harbor defenses and the preservation of the same, and for torpedo experiments
in their application to harbor and land defense, and for instruction of engineer bat-
talion in their preparation and application, fifty thousand dollars: Provided, That
the money herein appropriated for torpedoes shall only be used in the establishment
and maintenance of torpedoes to be operated from shore stations for the destruction
of an enemy's vessel approaching the shore or entering the channels and fairways of
harbors," which was repeated in the acts of February 10, 1875, June 20, 1876, March
3, 1877, March 23, 1878, March 3, 1879, May 4, 1880, March 3, 1881, and May 19,
1882. The act of March 3, 1883, contained the requirement that "one-half of the
money herein appropriated may be used in the purchase of torpedoes of the latest
improvement."
If, in the opinion of the Chief of Engineers, a contemplated building will be an
appliance necessary in the operation of submarine mines for the defense of harbors,
or will, when completed, be used in operating such mines, or in such a way as to
render their operation possible for the defense of harbors, the cost of its erection is
chargeable to the appropriation for torpedoes for harbor defense. 3 Compt. Dec. , 30.
2 A proceeding to condemn lands for the use of the United States under this statute
is properly brought in a district court of the United States. In such proceeding
the practice should be in substantial conformity with that pursued in the courts of
the State in which the lands are situated, when similar proceedings are there insti-
tuted. U. S. v. Engeman, 45 Fed. Rep., 546.
The manner in which the power of eminent domain of the United States shall be
exercised is a matter of legislative discretion, and Congress, by the act of August 1,
1888 (25 Stat, L., 357), has vested in the United States circuit 'and district courts of
the district in which land is situated jurisdiction of proceedings authorized to be
instituted by any public officer to condemn such land for public purposes. By the
act of August 18; 1890 (26 Stat. L., 316), the Secretary of War is authorized to cause
proceedings to be instituted for the condemnation of land for military purposes "in
any court having jurisdiction of such proceedings." Held, that said acts are in pari
materia, and upon an application by the Secretary of War, under the latter act, the
Attorney-General may, at his election, cause proceedings to be instituted for the
condemnation of land for military purposes in either the State or Federal courts.
Chappell v. U. S., 81 Fed. Rep., 764.
Where land proposed to be conveyed by a State to the United States for the pur-
404 MILITARY LAWS OF THE UNITED STATES.
the acquirement, by condemnation, of any land, or right
pertaining thereto, needed for the site, location, construc-
tion, or prosecution of works for fortifications and coast
defenses, such proceedings to be prosecuted in accordance
with the laws relating to suits for the condemnation of
property of the States wherein the proceedings may be
instituted: Provided, That when the owner of such land
or rights pertaining thereto shall fix a price for the same,
which, in the opinion of the Secretary of War, shall be
reasonable, he may purchase the same at such price with-
out further delay. Act of August 18, 1890(26 Stat. L.,
316).
Donations. 1Q87. The Secretary of War is hereby authorized to ac-
cept on behalf of the United States donations of lands or
rights pertaining thereto required for the above-mentioned
purposes. Ibid.
case°CofUremer- 1088. In case of emergency when, in the opinion of the
gejn<KNo. is. President, the immediate erection of an}T temporary fort
3oApr737.'189b'v'or fortification is deemed important and urgent, such
temporary fort or fortification may be constructed upon
the written consent of the owner of the land upon which
such work is to be placed; and the requirements of section
three hundred and fifty-five of the Revised Statutes shall
not be applicable in such cases. Joint resolution No. 18,
of April 11, 1898 (30 Stat. L., 737).
Disbursements. 1089. It shall be the duty of the engineer superintending
162, s. 27, v. 5, p. the construction of a fortification, or ensragfed about the
260; July 7, 1838,
c. 194, v.5, p. 308. execution of any other public work, to disburse the moneys
' applicable to the same; but no compensation shall be
allowed him for such disbursements.1
pose of fortifications was described in the proffered deed as extending to the sea and
in a line along the sea, held that such a deed would convey only land extending to
and bounded by a high-water mark, and advised that the grant should be so
expressed as specifically to include the shore to low- water mark, and should also
embrace such water-covered lands as would be sufficient to prevent the erection, by
the authority of the State, of structures that might interfere with the proper use of
the land for purposes of fortifications. Dig. Opin. J. A. G., par. 1560.
1 When an engineer officer is sent to any military department, fortress, garrison, or
post, a duplicate of his orders will be sent to the commanding officer. On his arrival
the engineer officer will communicate his orders, and necessary facilities for execut-
ing them will be afforded by the commanding officer. While so on duty, without
being especially put under the direction of the commanding officer, the engineer
officer will be furnished with copies of all orders and regulations of the command
relative to etiquette and police, and with the countersign when quartered within a
chain of sentinels. The engineer officer will report to the commanding officer when
relieved from duty within the limits of the command. Par. 1689, A. R., 1901.
Engineer officers engaged in the construct! on of fortifications or other public works
are entitled to the same allowances of quarters, mess rooms, and kitchens, with fuel
for the same, as are provided by regulations for officers at garrisoned posts. Par. 1690,
ibid.
When the Chief of Engineers is satisfied that any fortification is in all respects
complete so far as the functions of his department are concerned, he will give notice
MILITARY LAWS OF THE UNITED STATES. 405
1090. Any person who shall willfully, wantonly, or mail- nto e
ciously trespass upon, injure, or destroy any of the works doje^ etc'
or property or material of any submarine mine or torpedo, 30 P-
or fortification or harbor-defense system owned or con-
structed or in process of construction by the United States,
or shall willfully or maliciously interfere with the operation
or use of any such submarine mine, torpedo, fortification,
or harbor-defense s}^stem, or shall knowingly, willfully or
wantonly violate any regulation of the War Department
that has been made for the protection of such mine, tor-
pedo, fortification or harbor-defense system shall be pun-
ished, on conviction thereof in a district court of the United
States for the district in which the offense is committed,
by a fine of not less than one hundred nor more than five
thousand dollars, or with imprisonment for a term not
exceeding five years, or with both, in the discretion of the
court. Act of July 7, 1898 (30 Stat. Z., 717).
THE NAVIGABLE WATEKS OF THE UNITED STATES.
Par. i Par.
1095. Rivers in Alabama.
1096. The Maquoketa River, Iowa.
1097. The Cuivre River, Missouri.
1091. Navigable rivers.
1092. Rivers in Louisiana.
1093. The Iowa River.
1094. The Des Moines River.
1091. All navigable rivers, within the territory occupied
by the public lands, shall remain and be deemed public
highways ; and, in all cases where the opposite banks of 29^aJ y8 11'
any streams not navigable belong to different persons, the^^'^ ^fp3'^27'
stream and the bed thereof shall become common to both. Sec-24'6^-s.
1092. All the navigable rivers and waters in the former Rivers in Lou-
Territories of Orleans and Louisiana shall be and forever Mar.' 3, mi, c.
, ,. , . , 46,s.l2,v.2,p.606.
remain public highways. Sec.525i,R.s.
thereof to the Secretary of War, that it may be turned over for occupation by the
troops. Until its completion has been announced, no work will be occupied by
troops except by the special order of the Secretary of War. Par. 1486, A. R. 1895.
No alterations will be made in any fortification or in its casemates, quarters, bar-
racks, magazines, storehouses, or any other building belonging to it, nor will any
building of any kind or work of earth, masonry, or timber be erected within the
fortification or within a mile of its exterior, except under the direction of the Chief
of Engineers United States Army and by authority of the Secretary of War. Par.
1691, A. R., 1901.
1 The doctrine of the common law as to the navigability of waters has no applica-
tion in this country. Here the ebb and flow of the tide do not constitute the usual
test, as in England, or any test at all of the navigability of waters. The test by which
to determine the navigability of waters in our rivers is found in their navigable capac-
ity. Those rivers are navigable rivers in law which are navigable in fact. ^ Rivers
are navigable in fact when they are used, or are susceptible of being used, in their
ordinary condition, as highways for commerce, on which trade and travel are, or
may be conducted, in the customary modes of trade and travel on waters; and they
constitute navigable waters of the United States, within the meaning of the acts of
Congress, in contradistinction from the navigable waters of the States, when they form,
406 MILITAEY LAWS OF THE UNITED STATES.
The Iowa river. 1093. So much of the Iowa River within the State of
Res. NO. 55, v. is! Iowa as lies north of the town of Wapello shall not be
1870, c.' 92, v. ie| deemed a navigable river or public highway, but dams
Sec.'5248,R.s. arid bridges may be constructed across it.
in their ordinary condition, by themselves, or by uniting with other waters, a con-
tinued highway over which commerce may be carried on with other States or foreign
countries in the customary modes in which such commerce is Conducted by water.
The Daniel Ball, 10 Wall, 557; The Montello, 11 Wall., 411; Ex parte Boyer, 109
U. S., 629.
If a river is not of itself a highway for commerce with other States or foreign coun-
tries, or does not form such highway by its connecton with other waters, and is only
navigable between different places within the State, it is not a navigable water of the
United States, but only a navigable water of a State. The Montello, 11 Wall., 411.
The right to regulate commerce includes the right to regulate navigation, and hence
to regulate and improve navigable rivers and ports on such rivers. So. Car. v. Ga.,
93 U. S., 4; Oilman v. Philadelphia, 3 Wall., 713.
In the case of the Willamette Bridge Co. v. Hatch (125 U. S., 1), it was held that
clauses similar to that contained in the ordinance of 1787 (1 Stat. L., 52, note) to the
effect that "the navigable waters leading into the Mississippi and the St. Lawrence,
and the carrying places between them, shall be common highways and forever free,
as well to the inhabitants of the said territory as to the citizens of the United States
and those of any other States that may be admitted into the Confederacy, without
any tax, impost, or duty therefor " (see also act of February 14, 1859, 11 Stat. L., 383),
do not refer to physical obstructions, but to political regulations which would hamper
the freedom of commerce, ' and can not be regarded as establishing the
police power of the United States over such river, or as giving the Federal courts
jurisdiction to hear and determine, according to Federal law, every complaint that
may be made of an impediment in, or an encroachment upon, the navigation of these
rivers. * Nor does the expenditure of money in improving navigation of such
rivers import an assumption of police power.
When Congress, in the exercise of its exclusive power to direct how the public money
shall be employed, has appropriated a certain sum to be devoted, without exceptions
or provisos, to a certain specific internal improvement, it devolves upon the Executive
Department of the Government, charged as it is with the execution of the laws enacted
by the Legislature, to proceed with the work under the appropriation, without enter-
taining any question as to the expediency of the expenditure. Thus where Congress
had made in general terms an appropriatioi* of a specific amount for improving a cer-
tain river, advised that it was for the officer charged with the improvement simply
to do the work, without delaying, to raise or consider questions or claims of title to
the land, etc., to be affected by the improvement; such matters being quite beyond
the province of an executive official under the circumstances. Dig. Opin. J. A. G.,
par. 1487.
The United States is not the owner of the soil of the beds of navigable waters [see
the definition of the term "navigable waters of the United States," in The Daniel
Ball, 10 Wall., 557; Ex parte Boyer, 109 U. S., 629], nor of the shores of tide wa^rs
below high-water mark, nor of the shores of waters not affected by the tide below
the ordinary water line of the same, except as it may have become grantee of such
soil from the State or from individuals. The 'property and jurisdiction in and over
the beds and shores of navigable waters is in general in the State, or in the individual
riparian owner [Pollard r. Hagan, 3 How., 212; Barney v. Keokuk, 94 U. S., 337;
Gilman v. Philad., 3 Wall., 713; South Carolina r. Georgia, 93 U. S., 4; VI Opin.
Att. Gen., 172; VII ibid., 314; XVI ibid., 479]. But under the power to regulate
commerce Congress may assume, as it has recently assumed, the power so to regulate
navigation over navigable waters within the States as to prohibit its obstruction and
to cause the removal of obstructions thereto, and such power when exercised is
' ' conclusive of any right to the contrary asserted under State authority. [Wisconsin
v. Duluth, 96 U. S., 379]. In exercising this power it can not divest rights of title or
occupation in a State or individuals, but these rights are left to be enjoyed as before,
subject, however, to the paramount public right of freeing navigation from obstruc-
tion, possessed and exercised by the United States through Congress. In the execu-
tion of the laws relating to obstructions to navigation the Secretary of War has no
general authority, but only such as may have been vested in him by legislation of
Congress, especially in the river and harbor appropriation acts. Ibid., par. 1773.
As between the United States and a State, the soil of the bed of navigable waters
and of the shores of tide waters below high- water mark, or — on rivers not reached
MILITARY LAWS OF THE UNITED STATES. 407
1094. The Des Moines River shall forever remain free RTheDesMoines
from any toll, or other charge whatever, for any property 1QW. 8, is^c.
of the United States, or persons in their service, passing Jan^ 20' ISTO.C.?,'
along the same. Sec. 52*6, E.S.
by the tide — the soil of the shores below the ordinary water line (as not affected by
freshet or unusual drought) belongs to the State. But natural accretions to land
owned by private individuals belong to the owners of the land. Thus, held, that the
accretions to Hog Island, in the mouth of the Missouri River, belonged, not to the
United States or to the State of Missouri, but to the owner of the island. Ibid., pars.
1559, 1711 and 1712.
WThere the title to tide lands along the shores of a State is vested in such State by
virtue of its sovereignty, and tide lands along the shores of any Territory are held in
trust by the General Government for the future State, nevertheless the rule now is
that, during the Territorial period, the United States holds the permanent dtle to tide
lands and may make grants thereof. Carroll v. Prince, 81 Fed. Rep., 138; Shively v.
Bowlby, 152 U. S., 1; Mann v. Land Co., 153, ibid., 273.
Held, that it was doubtful whether "floatable" streams, i. e., streams capable only
of being used for floating saw logs, timber, etc., not being navigable in a general
sense, were included in the term ' ' navigable waters of the United States, ' ' as employed
in statutes providing that dams shall not be constructed in such waters without the
permission of the Secretary of War. But held, that it was clearly competent for Con-
gress, under the commerce clause of the Constitution, to exercise legislation over such
streams as highways of interstate commerce. Dig. Opin. J. A. G., par. 1793. See
also Martin?-. Waddell, 16 Pet., 367; Pollards Hagan, 3 How., 212; Pennsylvania
v. Wheeling Bridge Co., 13 How., 518; Den v. Jersey Co., 15 How., 426.
POWER OF THE STATES.
Until the dormant power of the Constitution is awakened and made effective by
appropriate legislation the reserved power of the State is plenary, and its exercise in
good faith can not be made the subject of review by this court. Gilman v. Philadel-
phia, 3 Wall., 713. The power to construct work of rivers and harbor improvement
in the navigable waters of the United States, as an incident of the power to regulate
commerce "covering as it does a wide field, and embracing a great variety of sub-
jects, some of which will call for uniform rules and national legislation, while others
can best be regulated by rules suggested by the varying circumstances of differing
places, and limited in their operation to such places respectively; and to the extent
required by these last cases, the power to regulate commerce may be exercised by
the States." Ibid. However, Congress may interpose whenever it shall be deemed
necessary, by either general or special laws. It may regulate all bridges over navi-
gable waters, remove offending bridges, and punish those who shall thereafter erect
them. Ibid. It is for Congress to determine when its full power shall be brought
into activity, and as to the regulations and sanctions which shall be provided. U. S.
v. New Bedford Bridge, 1 Woodbury and Minot, 420, 421; U. S. r. Cornet, 12 Pet.,
72; N. Y. v. Milne, 11 Pet, 102, 155; The Wheeling Bridge Cases, 13 How., 518; 18
ibid., 521.
A State has power to change the channels of rivers within the State for purposes
of internal improvement. Withers v. Buckley, 20 How., 84; So. Car. v. Ga., 93
U. S., 4. In the absence of legislation by Congress, a State statute authorizing the
erection of a dam across a navigable river which is wholly within its limits is not
unconstitutional. Wilson v. Blackbird Creek Marsh Co. , 2 Pet. , 245 ; Pound v. Turck,
95 U. S., 459.
Acts of Congress merely making appropriations for the improvement of a river
lying within a State do not operate as an inhibition against State legislation authoriz-
ing the construction of booms, dams, piers, etc., so as to make unlawful such struc-
tures when erected under State authority. U. S. v. Bellingham Bay Boom Co., 81
Fed. Rep. , 658. To bring obstructions and nuisances in navigable waters lying within
a State within the cognizance of the Federal courts, there must be some statute of
the United States directly applicable to such streams. Ibid., 58; Wilson v. Marsh
Co., 2 Peters, 245, 252; Gilman v. Philadelphia, 3 Wallace, 713; The Passaic Bridges,
ibid., 782, 793; Pound v. Turck, 95 U. S., 459; Escanaba and L. M. Transpn. Co. v.
Chicago, 107 U. S., 78, 83; Cardwell v. Bridge Co., 113 U. S., 205, 208; Bridge Co.
v. Hatch, 125 U. S., 8. The act of September 19, 1890 (26 Stat. L., 426), which, in
section 10, prohibits the creation of any obstruction not "affirmatively authorized
by law" to the navigable capacity of waters over which the United States has juris-
408 MILITARY LAWS OF THE UNITED STATES.
1095- The Tennessee, Coosa, Cahawba, and Black War-
frMay°23, 1828,' c. rior Rivers, within the State of Alabama, shall be forever
^ree fr°m toU f°r a^ property belonging to the United
States, and for all persons in their service, and for all citi-
zens of the United States, except as to such tolls as may
be allowed by act of Congress.1
iQ96. The assent of Congress is given to the construc-
i ^on °^ bridges across the Maquoketa River, within the
vsec' 52io'R s State of Iowa, with or without draws, as may be provided
by the laws of that State.2
diction, was not retroactive so as to make unlawful the continuance of a boom con-
structed prior to its passage, under the authority of a State law. U. S. v. Bellingham
Bay Boom Co., 81 Fed. Rep., 658; U. S. v. Burns, 54 Fed. Rep., 351, 362.
The authority conferred upon the Secretary of War by the act of June 29, 1888
(25 Stat. L., 209), does not extend to the waters of the Hudson River as far distant
as Troy, Albany, and New Baltimore. The term "tributary waters," as used in that
act, covers only such parts of the river as, in a broad sense, can be regarded as
connected with" that harbor. XIX Opin. Att. Gen., 317.
The waters of the East River comprise navigable waters of the United States lying
wholly within the limits of a State. XX Opin. Att. Gen., 479.
The Chicago River is navigable and under control of Congress; but until that body
acts the State of Illinois has authority, and may vest in the city of Chicago jurisdic-
tion over the construction of a bridge within the city limits. Escanaba Co. v. Chicago,
107 U. S., 678. The State of Michigan authorized the improvement of a river wholly
within that State, and the exaction of the tolls for the use of the river so improved.
Held, that the statute did not impair the contract contained in the ordinance of 1787,
giving the people the right to use the waters leading into the St. Lawrence free of
duty, tax, or impost. Sands v. Manistee River Imp. Co., 123 U. S., 288; Ruggles
v. The same, ibid. ,.297.
1 Tide lands. — In this country waters to be navigable in law must be capable of
navigation in fact as a highway for commerce. [Where evidence as to the character
of a stream is conflicting, whether it is a navigable stream within the meaning of
section 3 of the act of July 13, 1892 (27 Stat. L., 110), is a question of law and fact
for the jury. Leovy v. U. S., 92 Fed. Rep., 344.] A bay or arm of one of the Great
Lakes, some 4,000 acres in extent, of the average depth of not more than 2 feet and
rarely more than 3 feet, covered with grass and rushes in summer, and which was
surveyed and patented to the State as swamp land is not navigable water, but merely
a marsh, and subject to private ownership. Toledo Liberal Shooting Club v. Erie
Shooting Club Co., 90 Fed. Rep., 680; Barney v. Keokuk, 94 U. S., 324; The Daniel
Ball, 10 Wallace, 557-563; The Montello, 20 Wallace, 430-441.
The title to tide lands along the shores of a State is vested in such State by virtue
of its sovereignty, and tide lands along the shores of any Territory are held in trust
by the General Government for the future State; nevertheless, the rule now is that
during the Territorial period the United States holds the permanent title to tide
lands, and may make grants thereof. Carroll v. Price, 81 Fed. Rep., 137; Shively v.
Bowlby, 152 U. S., 1; Mann v. Land Co., 153 U. S., 273.
Marshes and mud shoals on the sides of harbors and streams within the influence
of the tides may be granted by the State to private parties when this can be done
without interfering with the public rights of navigation in the streams and harbors
themselves, and in South Carolina marsh lands of this character have always been
treated as subject to grant. But as to public navigable streams themselves, the
sovereign holds them in trust for the. public use, and can make no valid grant
thereof, such as would hinder or impede the rights of the public therein. Chisolm
v. Caines, 7 Fed. Rep., 285; Illinois Central R. R. Co., 14 U. S., 45; Shively v.
Bowlby, 152 U. S., 548; Lowndes v. Board, 153 ibid., 758; Hardin v. Jordan, 140 ibid.,
371; City of Hoboken v. Pennsylvania R. R. Co., 124 ibid., 56.
Wharves come within admiralty jurisdiction. In England wharf property may
extend to low- water mark; in this country to the point of navigability. Cliffords
Case, 34Ct. Cls.,223.
2 Riparian rights. — The rights of riparian owners of land situated upon navigable
rivers are to "be measured by the rules and decisions of the courts of the State in
which the land is situated, whether it be one of the original States or a State admitted
MILITARY LAWS OF THE UNITED STATES. 409
1097. Cuivre River, in the counties of Lincoln and Saint
Charles, in the State of Missouri, being the dividing line, ^MJ^J; 1900,
is hereby declared not to be a navigable stream, and shall v- 81« p- 50-
be so treated by the Secretary of War and all other
authorities. Act of March 23, 1900 (31 Stat. Z., 50).
PRELIMINARY SURVEYS — ESTIMATES REPORTS.
Par. I Par.
1098. Reports. | 1102. Estimates.
1099, 1100, 1101. Restriction on surveys, 1103. Annual reports.
etc.
1098. In every case where surve}rs are made, the report 5u|°2tsi882 v
thereon shall embrace such information concerning the 22> p- 213-
commercial importance, present and prospective, of the
after the adoption of the Constitution. St. Anthony Falls Water Power Co. v. St.
Paul Water Commissioner, 168 U. S., 349; Martin v. Waddell, 16 Peters, 367; Pol-
lard v. Hagan, 3 Howard, 212; Goodtitle v. Kibbe, 9 Howard, 471; Barney v. Keo-
kuk, 94 U. S., 324; The Genesee Chief, 12 Howard, 443; St. Louis v. Myers, 113 U. S.,
566; Packer v. Bird, 137 U. S., 661; Hardin v. Jordan, 140 U. S., 371; St. Louis v.
Rutz, 138 U. S., 226, 242; Kaukauna Water Power Co. v. Green Bay and Mississippi
Canal Co., 142 ibid., 254; City of Janesville v. Carpenter, 77 Wisconsin, 288, 300;
Shively v. Bowlby, 152 U. S., 1.
The royal charters granted by the English Crown to the founders of the Atlantic
colonies conveyed to the grantees both the territory described and the powers of
government; and, under such charters, the dominion or property in the navigable
waters and in the soil under them passed as a part of the prerogative rights annexed
to the political powers conferred on the patentees, and in their hands were intended
to be a trust for the common use and benefit of the new communities, and not as
private property which could be parceled out and sold; and, on the Revolution,
such rights became vested in the several States for like purposes, where such as were
not surrendered by the Constitution to the Federal Government remain. Morris v.
U. S., 174 U.S., 196.
Taking of lands for public use. — When the Government, for the purpose of improv-
ing the navigation of a river, takes possession of submerged land which is in the use
and possession of a citizen under a right derived from the State, it takes private prop-
erty for a public use, and must compensate the owner therefor. Brown v. U. S., 81
Fed. Rep., 55.
Acts done in the proper exercise of governmental powers, and not directly encroach-
ing upon private property, although their consequences may impair its use, are not
a taking within the meaning of the constitutional provision which forbids the taking
of such property for public use without just compensation therefor. Transportation
Co. v. Chicago, 99 U. S., 635; XVIII Opin. Att. Gen., 64. The United States may
occupy and use soil within the bed of a river for the improvement of the navigation
of such river, such occupation and use not giving rise to a question under the law of
eminent domain, the soil being held by its owners subject to the higher right of the
United States in respect to the navigation of the river. XVIII Opin. Att. Gen., 64;
High Bridge Lumber Co. v. U. S., 9 Fed. Rep., 320; Cooley, Constitutional Limita-
tions, pp. 541-543; Railroad Co. v. Bingham, 87 Tenn., 522; Smith v. Washington,
20 Howard, 135; Transportation Co. v. Chicago, 99 U. S., 635-641.
Section 6 of the act of June 3, 1896 (29 Stat. L., 235), contained the requirement
that the "Secretary of War is hereby authorized and directed to cause to be made
and transmitted to the first session of the Fifty-fifth Congress a compilation giving a
complete list of all the preliminary examinations that have heretofore been made,
date of report, with a statement as to each, whether favorable or unfavorable for
survey; also a complete list of all surveys that have heretofore been made, with a
statement as to each, whether favorable for adoption or unfavorable, and date of
report, amount recommended for completion and amount recommended for each to
be expended during the fiscal year beginning July first, eighteen hundred and ninety-
410 MILITARY LAWS OF THE UNITED STATES.
improvement contemplated thereby, and such general com-
mercial statistics as the Secretary of War may be able to
procure.1 Act of August 2, 1882 (22 Stat. Z., 213).
su?vlys!cetcn on 1099. No preliminary examination,2 survey, project, or
s. vvn3o3p.ii49! estimate for new works other than those designated in this
or some prior act or resolution shall be made. Sec. 2, act
of March 3, 1899 (30 Stat. Z., 1149).
J^esame. 1100. After the regular or formal report on any exam-
ination, survey, project, or work under way or proposed
is submitted, no supplemental or additional report or esti-
mate for the same fiscal year shall be made unless ordered
by a concurrent resolution of Congress. Sec. 2, act of
March 3, 1899 (30 Stat. Z., 1149).
eight, by both the Chief of Engineers and the engineer in charge; also a complete
list of all projects now under construction or maintenance, together with the year
when adopted, and if modified, when, the total amount expended on each project
and estimate of amount required to complete the same, and amount recommended by
the Chief of Engineers and by the engineer in charge to be expended during the fiscal
year beginning July first, eighteen hundred and ninety-eight, the amount appropri-
ated for each project by this act, making reference to the report of the Chief of Engi-
neers where report of each project is given, together with a statement containing the
amount of the unexpended balance to the credit of each project July first, eighteen
hundred and ninety-seven, whether under construction, work suspended, or appro-
priation made and work not commenced; also the total amounts appropriated here-
tofore for the improvement and maintenance of the rivers and the total amounts
heretofore appropriated for the improvement and maintenance of harbors in each
river and harbor act; also the total amount of appropriation by States for the improve-
ment of rivers and harbors." The report above required was furnished to Congress
by the Chief of Engineers on May 13, 1898. Document No. 482, H. R., 55th Con-
gress, 2d session.
Section 2 of the act of June 3, 1896 (29 Stat. L., 234), contained the requirement
that "The Secretary of War is directed to cause to be prepared a compilation of all
general laws that have been enacted from time to time by Congress for the mainte-
nance, protection, and preservation of the navigable waters of the United States
which are now in force, and to submit the same to Congress at its session in December
next, together with such recominendation as to revision, emendation, or enlargement
of the said laws as, in his judgment, will be advantageous to the public interest."
aThis provision was repeated in the acts of July 5, 1884 (23 Stat. L., 153), August
5, 1886 (24 ibid., 335), August 11, 1888 (25 ibid., 433), and September 19, 1890 (26
ibid., 464).
2Theactsof July 13, 1892 (27 Stat. L., 115), and August 7, 1894 (28 ibid., 369),
contained the requirement that "The preliminary examinations ordered in this act
shall be made by the local engineer in charge of the district, or an engineer detailed
for the purpose; and such local or detailed engineer and the division engineer of the
locality shall report to the Chief of Engineers, first, whether, in their opinion, the
harbor or river under examination is worthy of improvement by the General Govern-
ment, and shall state in such report fully and particularly the facts and reasons on
which they base such opinions, including the present and prospective demands of
commerce; and, second, if worthy of improvement by the General Government, what
it will cost to survey the same, with a view of submitting plan and estimate for its
improvement; and the Chief Engineer shall submit to the Secretary of War the
reports of the local and division engineers, with his views thereon and his opinion
of the public necessity or convenience to be subserved by the proposed improvement;
and all such reports of preliminary examinations, with such recommendations as he
may see proper to make, shall be transmitted by the Secretary of War to the House
of Representatives, and are hereby ordered to be printed when so made." The acts
of August 2, 1882 (22 Stat. L., 213), July 5, 1884 (23 ibid., 153), Augusts, 1886 (25
ibid., 433), September 19, 1890 (26 ibid., 464), August 17, 1894 (28 ibid., 372), and
June 3, 1896 (29 ibid., 234), contained similar requirements.
MILITARY LAWS OF THE UNITED STATES. 411
1101. The Government shall not be deemed to have SS.8*1116-
entered upon any project for the improvement of any
waterway or harbor mentioned in this act until funds for
the commencement of the proposed work shall have been
actually appropriated by law.1 Sec. 8, act of March 3,
1899 (30 Stat. Z., 111,9).
1102. Hereafter the Secretary of War shall annually Estimates.
June 4, 1897, v.
submit estimates in detail for river and harbor improve- so, p. 48.
ments required for the ensuing fiscal year to the Secretary
of the Treasury, to be included in, and carried into the sum
total of, the Book of Estimates.2 Act of June 4, 1897 (30
Stat. L., 48).
1103. The Secretary of War shall cause the manuscript Annual report
J of Chief of En-
of the annual report of the Chief of Engineers and sub-
Sec. 8, Aug. 11,
ordinate engineers, relating to the improvement of rivers isss, v. 25^.424.
and harbors, and the report of the Mississippi and Mis-
souri River commissions to be placed in the hands of the
Public Printer on or before the fifteenth day of October
in each year, and the Public Printer shall cause said reports
to be printed, with an accurate and comprehensive index
thereof, on or before the first Monday in December in
each year, for the use of Congress. Sec. #, act of August
11, 1888 (25 Stat. Z.,
CONTRACTS AND PURCHASES.
Par. Par.
1104. Application of appropriations; con- I 1105. Two or more works in one contract.
tracts. ! 1106. Purchases of lands.
1104. It shall be the duty of the Secretary of War to
apply the money herein and hereafter appropriated f or
improvements of rivers and harbors, other than surveys,
estimates, and gaugings, in carrying on the various works,
by contract or otherwise, as may be most economical and
advantageous to the Government. Where said works are
done by contract, such contract shall be made after suffi- Contracts-
cient public advertisement for proposals, in such manner
and form as the Secretary of War shall prescribe; and
such contracts shall be made with the lowest responsible
bidders, accompanied by such securities as the Secretary
of War shall require, conditioned for the faithful prosecu-
]For a similar provision gee section 14, act of August 1, 1888 (25 Stat. L., 433),
and section 13, act of August 17, 1894 (28 ibid., 371).
2 The act of March 3, 1893 (27 Stat. L., 603), contained a similar requirement.
3 See also the chapter entitled CONTRACTS AND PURCHASES, the requirements of which
prevail in all purchases in behalf of the United States except those expressly excepted
in this chapter.
412 MILITARY LAWS OF THE UNITED STATES.
tion and completion of the work according to such con-
tract.1 Sec. 3, act of August 11, 1888 (25 Stat. Z., $3).
wJrksmaybe°iFn 1105- Nothing contained in section thirty-seven hundred
one contract etc. an(j seventeen of the Revised Statutes of the United States,
xt. o.jSGC. o/l/,
?'2534' 7^dified;nor in section three of the river and harbor act of August
> eleventh, eighteen hundred and eighty-eight, shall be so
construed as to prohibit or prevent the cumulation of two
or more works of river and harbor improvement in the
same proposal and contract, where such works are situated
in the same region and of the same kind or character. '
Sec. 2, act of September 19, 1890 (26 Stat. Z., 458).
1 The appropriation of money for the improvement of a harbor on a navigable
river confers discretionary power upon the Secretary of War as to the means by
which such improvement shall be effected. So. Car. v. Ga., 93 U. S., 4. The opera-
tions of the Government in this regard have been conducted by the Bureau of Engi-
neering, as part of the War Department, to which Congress has confided the execution
of its wishes in all those matters. * * It can not be necessary to say that, when
a public work of this character has been inaugurated or adopted by Congress and its
management placed in control of its officers, there exists no right in any other branch
of the Government to forbid the work or to require the undoing of what has been
done or to prescribe the manner in which it shall be conducted. Wisconsin v. Du-
luth, 96 U. S., 379. For these purposes Congress possesses all the powers which
existed in the States before the adoption of the Constitution, and which have always
existed in the Parliament of England. Gilman v. Philadelphia, 3 Wall., 713.
Where an officer or agent, charged under the Secretary of War and the Chief of
Engineers with the duty of making purchases out of the appropriations for river and
harbor improvements, certifies that the prices paid were the lowest market rates
and the mode of expenditure adopted the most economical and advantageous to the
Government, and the Chief of Engineers approves his account so far as relates to
the necessity and expediency of the expenditures and the prices paid, it is not
within the province of the accounting officers to call in question the degree of wis-
dom or skill which may have accompanied the exercise of administrative discretion.
3 Compt., Dec. 22. It is the duty of the proper officers of the War Department to
determine when such an emergency exists requiring immediate delivery of property
necessary for river and harbor improvements as will authorize its purchase in open
market without advertisement. Discretionary power in this respect is vested by
law in the War Department, and the exercise of such discretion is not properly
re viewable by the accounting officers. 3 Dig. 2nd Compt., Dec., par. 1116.
2 This provision was repeated in the act of August 5, 1886 (24 Stat. L., 330).
For instructions of the Comptroller of the Treasury respecting the rendition of
accounts of disbursing officers of the Corps of Engineers, see Vol. IV, Compt. Dec. , 727.
Appropriations for continuing the improvement of rivers and harbors, not being
limited to a particular fiscal year and being made, by section 5 of the act of June 20,
1874 (18 Stat. L., 110), available until otherwise ordered by Congress, may be used
for the payment of expenses properly incurred at any time after the work for which
they are made was authorized. II Compt. Dec., 496.
An appropriation made for the improvement of a river by dredging can not be
used to build a training wall as part of the improvement. Ill Compt. Dec., 32; see
also II Compt. Dec., 256.
Contractors making rock excavations on Government property for river improve-
ments are to be considered, so far as regards their duty to avoid injuring third per-
sons, as owrners of the premises, and are not required to use extraordinary care, such
as covering their blasts, but only ordinary care. Passengers on river steamboats,
which are permitted to land near the place where such blasting is carrried on with
the express understanding that the boat owner must assume all responsibility, are
to be regarded as there by mere permission or sufferance and at their own peril, if
ordinary care is used. Smith v. Day, 86 Fed. Rep., 62; Morgan v. Penn. R. R. Co.,
7 Fed. Rep., 78; Eisenberg v. Railway Co., 33 Missouri Appeals, 91; Transit Co. v.
Rourke, 10 Illinois Appeals, 478; Railroad Co. v. Griffin, 100 Indiana, 223. One
who goes voluntarily, in the prosecution of his own business, on public lands where
improvements are going on or are being made by contractors, knowing that blasting
MILITAEY LAWS OF THE UNITED STATES. 413
PURCHASE OF LANDS.
1106. The Secretary of War may cause proceedings to
be instituted, in the name of the United States, in any ^ve^erX im'
court having jurisdiction of such proceedings, for the ac- 25Aprg|4' 1888' v'
quirement by condemnation of any land, right of way, or
material needed to enable him to maintain, operate, or pros-
ecute works for the improvement of rivers and harbors for
which provision has been made by law; such proceedings
to be prosecuted in accordance with the laws relating to
suits for the condemnation of property of the States
wherein the proceedings maybe instituted: Provided, how-
ever, That when the owner of such land, right of way, or
material shall fix a price for the same, which in the opinion
of the Secretary of War shall be reasonable, he may pur-
chase the same at such price without further delay : And
provided further, That the Secretary of War is hereby au-
thorized to accept donations of lands or materials required
for the maintenance or prosecution of such works.1 Act of
April 24, 1888 (25 Stat. Z., 94).
is going on there, assumes the risks incident to the prosecution of the work with
ordinary care, though he is there by the sufferance or permission of the contractors.
Smith v. Day et al., 86 Fed. Rep., 62.
The surgical and hospital expenses of a civil employee injured in the course of his
service upon a Government work are not a proper charge against the Government
in the absence of express statutory provision therefor. 1 Compt. Dec., 2; ibid., 181;
ibid., 271.
The continuous-contract system.— By the act of June 3, 1896 (29 Stat. L., 207), the
construction of works of river and harbor improvement by the continuous-contract
system was authorized by Congress. The practice has been followed in subsequent
acts of appropriation. The application of this system to a particular work involves
the establishment of a limit of cost in the act authorizing it to be undertaken, and
the authorization of the execution of contracts for the whole or a part of the work of
construction, subject to the restriction that the amount expended in any fiscal year
shall not exceed the sum specifically appropriated by Congress, such sum being in
general a certain per cent of the entire estimated cost of construction.
1 For general provisions in respect to the acquisition of land by the United States,
see the act of August 1, 1888, and the chapters entitled THE PUBLIC LANDS and THE
DEPARTMENT OP JUSTICE. The acts of June 14, 1880 (21 Stat. L., 193), and March 3,
1881 (ibid., 482), authorized the expenditure of funds in the acquisition of sites for
river and harbor improvements, by voluntary purchase or condemnation, under the
direction of the Secretary of War, with the proviso ' ' that if the owners of such lands
shall refuse to sell them at reasonable prices, then the prices to be paid shall be
determined and the title and jurisdiction procured in the manner prescribed by the
laws of the State in which such lands or sites are situated."
In a suit brought in a United States court to condemn land for use in connection
with the work of improving a river, the expenses of taking the jury to view the land
are payable from the appropriation of the Department of Justice made for the
expenses of the United States courts, and not from the War Department appropria-
tion for the improvement in connection with which the land is needed. II Compt.
Dec., 201.
414 MILITARY LAWS OF THE UNITED STATES.
MISCELLANEOUS PROVISIONS.
Par.
1107. Commercial statistics.
1108. Reports of deterioration.
Par.
1109. Fishways.
1110. Mileage.
stat?stic?atrriier 1107- Owners, agents, masters, and clerks of vessels
works. h a r b ° r arriving at or departing from localities where works of
v.F2e!' p21>766?9v.' river and harbor improvement are carried on shall furnish,
14, pp. vs. 421. on application of the persons in local charge of the works,
a comprehensive statement of vessels, passengers, freight,
and tonnage. That every person or persons offending
against the provisions of this act shall, for each and every
offense, be liable to a fine of one hundred dollars, or im-
prisonment not exceeding two months, to be enforced in
any district courtan the United States within whose terri-
torial jurisdiction such offense may have been committed.
Act of February 21, 1891 (26 Stat. L., 766).
terioffin°f de~ H08. The Secretary of War shall cause the Chief of
. S' Engineers of the United States Army, in submitting his
annual reports to Congress with regard to works of river
and harbor improvement under his charge, to state what
deterioration, if any, has taken place by destruction,
decay, obstructions, or otherwise, in connection with any
of such works, together with an estimate of the cost of
rebuilding or repairing such works or removing such
obstructions; and he shall also cause the said Chief of
Engineers to recommend, with his reasons therefor, the
discontinuance of appropriations for any river and harbor
work which he may deem unworthy of further improve-
ment.1 Sec. 7, act of March 8, 1899 (30 Stat. Z., 1150).
ii, H09- Whenever the improvements provided for by this
1888, v. 25, p. 425. ac^ or ^Qgg wnich have heretofore been prosecuted by the
United States, or may hereafter be undertaken, shall be
found to operate (whether by lock and dam or otherwise)
as obstructions to the passage of fish, the Secretary of War
may, in his discretion, direct and cause to be constructed
practical and sufficient fishways, to be paid for out of the
general appropriations for the streams on which such fish-
1 The act of March 3, 1899 (30 Stat. L., 1149), contains the requirement that " appro-
priations made for the respective works herein named, or so much thereof as may
be necessary, may, in the discretion of the Secretary of War, be used for the repair
and restoration of said works whenever from any cause they have become seriously
impaired, as well as for the further improvement of said works."
Section 5 of the act of July 13, 1892 (27 Stat. L., 88), contained the requirement
that no money thereafter appropriated for works of river and harbor improvement
should be expended for dredging inside harbor lines duly established under the
authority conferred by the statutes above set forth.
MILITARY LAWS OF THE UNITED STATES. 415
ways may be constructed.1 Sec. 11, act of August 11, 1888
(25 Stat. L., J$5).
1110. In determining the mileage of officers of ^JSSSS^^
Corps of Engineers traveling without troops on duty con- jand-grant roads,
nected with works under their charge, no deduction shall isfv^p.1^' s"
be made for such travel as may be necessary on free or
bond-aided or land-grant railways.2 Sec. 15, act of Sep-
tember 16, 1890 (26 Stat. L., 456).
OPERATION OF CANALS AND OTHER WORKS OF IMPROVEMENT.
Par.
1113. Regulations to be posted.
Par.
1111. Tolls not to be levied or collected
on canals.
1112. Use of canals, etc., to be regnlated
by Secretary of War.
1111. No tolls or operating charges whatsoever shall be ^erfednor co£
levied or collected upon any vessel or vessels, dredges, or £gted on canals-
other passing water craft through any canal or other work 18|JC;T ^^\$
1 Held (April, 1887), that under the acts appropriating money for the improve-
ment of the Columbia River, to be expended under the direction of the Secretary of
War, the Secretary, while authorized to make regulations for the prosecution and
protection of the works of improvement, was not empowered to require, by such
regulations, the removal of fish-traps and pound nets as obstructions to navigation;
that it wras not within the province of the Secretary of War to determine what is or
what may become an obstruction to navigation, and cause to be removed the one or
prohibited the other by a mere order or regulation, in the absence of authority
given by specific legislation of Congress. Dig. Opin. J. A. G., par. 1781.
A fish weir, so constructed as in a measure to obstruct the navigation of navigable
waters, can not legally be placed in such waters without the authority of the Secre-
tary of War, who, by section 7, act of September 19, 1890, is empowered to grant
permission for the purpose. And so of a boom desired to be placed in a navigable
river. Ibid., par. 1784.
2 The mileage allowance of officers of the Corps of Engineers when traveling on duty
connected with river and harbor improvements, being an expense necessarily inci-
dental to and incurred on account of such work, is properly payable from the appro-
priations therefor and not from the appropriation "Pay of the Army," at the special
rates prescribed by arm}- acts for mileage payable from said appropriation. 3 Dig. 2d
Compt. Dec., par. 290.
Officers of the Corps of Engineers, or those on engineer duty, traveling on service
connected with fortifications or works of public improvement, will be paid their
travel allowances from the special appropriations for the work. When traveling on
any other duty, the mileage will be paid by that branch of the service intrusted with
such paymen<ke for the Army. Par. 1693, A. R., 1901.
The provision in the act of March 15, 1898 (30 Stat. L., 321), that "the maximum
sum to be allowed and paid to any officer of the Army shall be seven cents per mile,"
applies to all officers of the Army, including officers of the Corps of Engineers. 4
Compt. Dec., 711. An officer of the Army traveling under orders and using a con-
veyance upon which transportation and subsistence are furnished or paid for by the
Government is not entitled to mileage. Ibid., 429.
The movements of an army officer assigned to duty requiring him to move from
place to place within the area of the district where his duties lie, for which he is fur-
nished Government transportation, do not constitute "travel" within the meaning
of the law allowing mileage for travel under orders. Ibid., 86.
The expense for transportation to a point not located on a railroad, incurred by an
officer of the Inspector-General's Department in inspecting unserviceable river and
harbor material, is properly payable from the appropriation for the rivei and harbor
work. 3 Compt. Dec., 3.
416 MILITARY LAWS OF THE UNITED STATES.
for the improvement of navigation belonging to the United
States; and for the purpose of preserving and continuing
the use and navigation of said canals, rivers, and other pub-
lic works without interruption, the Secretary of War, upon
actuaTSpenses ^ne application of the chief engineer in charge of said
TepSi^&ufhoT- works, is hereby authorized to draw his warrant or requisi-
tion from time to time upon the Secretary of the Treasury
to pay the actual expenses of operating and keeping said
works in repair, which warrants or requisitions shall be
paid by the Secretary of the Treasury, out of any money in
the Treasury not otherwise appropriated: Provided^ Jtow-
ever, That an itemized statement of said expenses shall
accompany the annual report of the Chief of Engineers.1
use of canals, 1H2. It shall be the duty of the Secretary of War to
etc., to be regu- . J J
lated by secre- prescribe such rules and regulations for the use, adminis-
sec. 4, Aug. 17, tration, and navigation of any or all canals and similar
1894, v. 28, p. 362.
works of navigation that now are, or that hereafter may be,
owned, operated, or maintained by the United States as in
his judgment the public necessity may require.2
Regulations to 1113. Such rules and regulations shall be posted, in con-
be posted.
spicuous and appropriate places, for the information of the
public; and every person and every corporation which shall
knowingly and willfully violate such rules and regulations
shall be deemed guilty of a misdemeanor and, on conviction
thereof in any district court in the United States within
whose territorial jurisdiction such offense may have been
committed, shall be punished by a fine not exceeding five
xThe indefinite appropriation made by section 4 of the act of July 5, 1884 (23
Stat. L., 147), is not applicable to river and harbor improvements generally, but only
to a particular class of public works, such as canals, locks, etc. , in the use of which
both operating expenses and expenses for repairs are necessarily incurred. XVIII
Opin. Att. Gen., 188.
The effect of this statute is to repeal so much of sections 5245, 5247, 5249, and 5255,
Revised Statutes, as authorizes the imposition of tolls or other charges for the use
of canals or other works of river and harbor improvement erected at the expense of
the United States. Section 5255 vested the management of the Louisville and Port-
land Canal in the Secretary of the Treasury at reduced rates of toll. The tolls were
still further reduced by the act of May 11, 1874 (18 Stat. L., 43) , and the control of
the canal transferred to the Secretary of War, who, by the act of July 5, 1884 (23
Stat. L., 148), was given authority to make, post, and enforce regulations for the use
of the canal, and this legislation was repeated in the act of September 30, 1888 (25
Stat. L., 497). The acts of May 18, 1880 (21 Stat. L., 141), and August 2, 1882 (22
Stat. L., 209) , contained a provision that no tolls or operating charges should be lev-
ied upon or collected from vessels, dredges, or other water craft passing through any
canal or other improvement of navigation belonging to the United States.
2 Section 7 of the act of July 5, 1884 (23 Stat, L., 148), authorized the Secretary of
War to prescribe ru^es and regulations for the use and administration of the Des
Moines Rapids Canal, the Saint Marys Falls Canal, and the Louisville and Portland
Canal. Section 14 of the act of September 19, 1890 (27 Stat. L., 455), provides that
the dry dock constructed at the Des Moines Rapids Canal shall constitute an inte-
grant part of the said canal, and makes the provisions of section 7, above cited,
applicable to the same. See also Dig. Opin. J. A. G., 534, par. 17.
MILITAEY LAWS OF THE UNITED STATES. 417
hundred dollars, or by imprisonment (in the case of a natu-
ral person) not exceeding six months, in the discretion of
the court.1 Sec. 4, act of August 17, 1894 (®$ Stat. L.
BRIDGES, ETC., OVER THE NAVIGABLE WATERS OF THE UNITED STATES.
Par. i Par.
1114. Bridges, dams, etc.
1115. Obstructions to navigation by
bridges, piers, etc.
1116. Drawbridges.
1117. The same, regulations for operation.
1114. It shall not be lawful to construct or commence the etc.ridges> dams'
construction of any bridge, dam, dike, or causeway over s ^c^0 3^ JJU'
or in &ny port, roadstead, haven, harbor, canal, navigable
river, or other nayigable water of the United States until
the consent of Congress to the building of such structures
shall have been obtained and until the plans for the same
shall have been submitted to and approved by the Chief
of Engineers and by the Secretary of War: Provided,
That such structures may be built under authority of the
legislature of a State across rivers and other Waterways
the navigable portions of which lie wholly within the
limits of a single State, provided the location and plans
thereof are submitted to and approved by the Chief of
Engineers and by the Secretary of War before construc-
tion is commenced: And provided further, That when
plans for any bridge or other structure have been approved
by the Chief of Engineers and by the Secretar}^ of War,
it shall not be lawful to deviate from such plans either
1 In view of the decision of the Supreme Court in the case of the United States v.
Eaton (144 U. S., 677), it maybe doubted whether regulations prepared in con-
formity to this statute can have the penal character which it undertakes to confer.
It was held in that case that "regulations prescribed by the President and by heads
of Departments, under authority of Congress, may be regulations prescribed by law
so as to lawfully support acts done under them and in accordance with them; but it
does not follow that a thing required by them is a thing so required by law as to
make a neglect to do the thing a criminal offense in a citizen, where a statute does
not distinctly make the neglect in question a criminal offense." U. S. v. Eaton, 144
U. S., 88; Caha v. U. S., 152 U. S., 212, 220. It is a principle of the criminal law that
an offense which may be the subject of criminal procedure is an act " committed or
omitted in violation of a public law, either forbidding or commanding it." U. S. v.
Eaton, 144 U. S., 87; IV American and English Cyclcpedia of Law, 642; IV Black-
stone Com., 5. In Morrill v. Jones (106 U. S., 466), it was held that the Secretary of
the Treasury could not alter or amend a statute by executive regulation; "much
more does this principle apply to a case where it is sought substantially to pre-
scribe a criminal offense by the regulation of a Department." That Congress can
not delegate legislative power to the President is a principle universally recognized
as vital to the integrity and maintenance of the system of government. Field v.
Clark, 143 U. S., 649. The enforcement of the law may be made to depend upon a
condition to be ascertained by an executive officer, but such an exception to the
uniform operation of the laws is not a grant of legislative power. Dunlap v. U. S., 33
C. Cls. R, 135. For an opinion to the contrary of that above expressed, however,
see U. S. v. Ormsbee, 74 Fed. Kep., 207.
22924—08 - 27
418 MILITARY LAWS OF THE UNITED STATES.
before or after completion of the structure unless the
modification of said plans has previously been submitted
to and received the approval of the Chief of Engineers
and of the Secretary of War. l Sec. 9, act of March 3,
1899 (30 Stat. L., 1160.)
T 1H5. Whenever the Secretary of War shall have good
. reason to believe that any railroad or other bridge now
is, v. so, p. 1153. constructed, or which may hereafter be constructed, over
1For enforcement clause see section 17, act of March 3, 1899, paragraph 1132, post.
The power of Congress to legislate for the prevention and removal of physical
obstructions to navigation in public rivers in general, (a) having been allowed to lie
dormant for nearly a century, began to be exercised in section 8 of the act of July
5, 1884, followed by the more explicit legislation on the subject of sections 9 and 10
of the act of August 11, 1888; such power having been previously left to be exer-
cised by the States. (6) But these acts, in providing for the remoyal of obstructions to
navigation caused by bridges, by requiring their alteration, etc., do not empower the
Secretary of War to resort to military force to effect the purpose. They leave the
execution of their provisions to the law officers and the courts. They make it
the duty of the Secretary of War, whenever the owners or responsible parties, after
having oeen notified to do so, neglect to so alter a bridge as to abate the obstruction,
to apprize the Attorney-General, who is thereupon required to initiate the proceed-
ings specified in the statute, (c) Dig. Opin. J. A. G. , par. 613.
The power thus assumed by Congress is more fully exercised in sections 4, 5, and
7 of the act of September 19, 1890.
A distinctive feature of this act is that it in effect precludes States from authorizing
the construction of bridges over navigable waters wnich are not wholly within their
territorial limits, and provides that it shall not be lawful to commence the construc-
tion of a bridge over navigable water of the United States under any act of a State
legislature " until the location and plan of such bridge" has "been submitted to and
approved by the Chief of Engineers and by the Secretary of War." Held, under
this provision, that the authority of a State for the erection ot a bridge over navigable
water within the State must be shown as a condition precedent to the approval by
the Secretary of War. Ibid.
Section 7 of the act of September 19, 1890 (reenacted in section 3, act of July 13,
1892), clearly shows that Congress did not intend to vest the Secretary of War with
discretion to approve the plans of any bridge proposed to be constructed by State
authority, except where such bridge was to be over navigable water lying wholly
within the State. And held that the fact that the title to the soil under the water
was vested in a municipality of the State did not affect the power of the State to
grant the necessary authority. The title is distinct from the right of conservation.
Though the title be vested in a town, there exists in the State, by reason of its sov-
ereignty, " a jus publicum ot passage and repassage, with consequent power of con-
servation," under (d) which it may concede the authority required by the statute.
Ibid., p. 199, par. 3.
Section 7 of the act of 1890, in leaving the matter of the authorization and con-
struction of bridges over navigable waters wholly within States entirely to the juris-
diction of the State, except in so far as to require the approval by the Chief of
Engineers and by the Secretary of War of the location and plan of the bridge, indi-
cates that Congress did not desire to exercise any further control over the subject.
So, upon an application for the approval by the Secretary of War of the plans of a
bridge over the Harlem River which is wholly within the State of New York, held
that the fact of the unusual importance of this stream, and of its immediate connec-
tions with great interstate waterways and the sea, did not except it from the jurisdic-
tion of the State under the statute or make necessary any special or additional legis-
lation by Congress for the authorization or control of its system of bridges. Ibid.,
par. 616.
a As to the constitutionality of the exercise of this power by Congress, see Miller v. Mayor of New
York, 109 U.S., 393-394.
b See Willamette Iron Bridge Co. v. Hatch, 126 U. S., 1.
cSee U. S. v. Rider, 50 Fed., 406, where it was held (by Sage, U. S. Dist. J.) that the act of 1888, s. 9
and 10, was unconstitutional in delegating to the Secretary of War "powers exclusively vested in
Congress." It is to be regretted that this, being a criminal case, could not have been appealed to the
Supreme Court.
d VI Opin. Atty. Gen., 178,
MILITAEY LAWS OF THE UNITED STATES. 419
any of the navigable waterways of the United States is
an unreasonable obstruction to the free navigation of such
waters on account of insufficient height, width of span, or
otherwise, or where there is difficulty in passing the draw
opening or the draw span of such bridge by rafts, steam-
boats, or other water craft, it shall be the duty of the said
Secretary, first giving the parties reasonable opportunity
to be heard, to give notice to the persons or corporations
owning or controlling such bridge so to alter the same as
to render navigation through or under it reasonably free,
easy, and unobstructed; and in giving such notice he shall
specify the changes recommended by the Chief of Engi-
neers that are required to be made, and shall prescribe in
each case a reasonable time in which to make them. If at
the end of such time the alteration has not been made, the
Secretary of War shall forthwith notify the United States
district attorney for the district in which such bridge is
situated, to the end that the criminal proceedings herein-
after mentioned may be taken. If the persons, corpora-
tion, or association owning or controlling any railroad or
other bridge shall, after receiving notice to that effect, as
hereinbefore required, from the Secretary of War, and
within the time prescribed by him, willfully fail or refuse
to remove the same or to comply with the lawful order of
the Secretary of War in the premises, such persons, cor-
poration, or association shall be deemed guilty of a mis-
demeanor, and on conviction thereof shall be punished by
a fine not exceeding five thousand dollars, and every
month such persons, corporation, or association shall re-
main in default in respect to the removal or alteration of
such bridge shall be deemed a new offense, and subject
the persons, corporation, or association so offending to
the penalties above prescribed: Provided, That in any
case arising under the provisions of this section an appeal
or writ of error may be taken from the district courts or
from the existing circuit courts direct to the Supreme
Court either by the United States or by the defendants.1
Sec. 18, act of March 3, 1899 (30 Stat. L., 1153).
xThis section replaces sections 4 and 5 of the act of September 19, 1890 (26 Stat.
L., 453), in pari materia. In the case of the United States v. The City of Moline (82
Fed. Rep., 592), decided by the United States district court for the northern district
of Illinois in 1897, it was held that section 4 of the act of September 19, 1890, was
not unconstitutional; see also Rider v. U. S., 178 U. S., 251, and Lake Shore R. R.
Co. v. Ohio, 165 U. S.,165.
The power of Congress to regulate bridges over navigable waters is paramount, and
where it comes into conflict with that of a State, the latter necessarily becomes inef-
fective. Yet, until Congress acts, and by appropriate legislation assumes control of
the subject, the power of a State over bridges across navigable waters is plenary.
Case of Railroad Bridge at St. Paul, Minn., XVIII Opin. Atty. Gen., 164; Wilson v.
420 MILITAKY LAWS OF THE UNITED STATES.
us
snaU ^e the duty of all persons owning, operat-
|ec. 5 Aug. i? in§o an(^ tending the drawbridges now built, or whicn
1894, v. 28, p. 362. may hereafter be built across the navigable rivers and
other waters of the United States, to open, or cause to be
opened, the draws of such bridges under such rules and
regulations as in the opinion of the Secretary of War the
public interests require to govern the opening of draw-
bridges for the passage of vessels and other water-crafts,
and such rules and regulations, when so made and pub-
lished, shall have the force of law. Every such person
who shall willfully fail or refuse to open, or cause to be
opened, the draw of any such bridge for the passage of a
boat or boats, or who shall unreasonably delay the opening
of said draw after reasonable signal shall have been given,
as provided in such regulations, shall be deemed guilty of
a misdemeanor, and on conviction thereof shall be pun-
ished by a fine of not more than two thousand dollars nor
less than one thousand dollars, or by imprisonment (in the
case of a natural person) for not exceeding one year, or by
both such fine and imprisonment, in the discretion of the
court: Provided, That the proper action to enforce the pro-
visions of this section may be commenced before any com-
missioner, judge, or court of the United States, and such
commissioner, judge, or court shall proceed in respect
thereto as authorized by law in case of crimes against the
United States.1 Sec. 5, act of Augmt 17, 1894 (%8 Stat.
Z.,
The Blackbird Marsh Co., 2 Peters, 250; Gilman v. Philadelphia, 3 Wallace, 713;
Pound v. Turck, 95 U. S., 459; Escanaba Co. v. Chicago, 107 U. S., 678; Bridge Co. v.
U. S., 105 U. S., 470; Miller v. The Mayor, 109 U. S., 385; Gloucester Ferry Co. v.
Pennsylvania, 114 U. S., 196; Luxton v. North River Bridge Co., 153 U. S., 525.
By the act of February 19, 1869 (15 Stat. L., 272), the construction of a drawbridge
over the Connecticut River at Middletown, Conn. , was authorized by Congress. The
State statute authorizing the construction of the bridge, of which the act above referred
to was in the nature of a confirmation and approval by Congress, required draws l ' not
less than 130 feet in width in the clear," and the bridge was to be located and con-
structed in such manner and according to such plans as should be approved by a
board of engineers to be appointed by the superior court. The bridge was built
accordingly under the supervision and with the approval of a board of engineers of
which two of the members were Generals McCIellan and Gillmore. The draw space
was 130 feet wide in the clear between the abutments down to the level of low water;
below that, the riprap, sloping outward from the piers, diminished the clear space
toward the bottom of the river. Held, that the contemporaneous construction of the
act as requiring the full width down to the level of low water only, the projection of
the riprap foundation below being approved by the board of engineers and con-
firmed by the court, was neither unreasonable nor so plainly contrary to the require-
ments of the act or the public needs as to render the bridge, approved as above, an
unlawful structure. Gildersleeve et al. v. The New York, New Haven and Hartford
R. R. Co., 82 Fed. Rep., 763; St. Louis and St. Paul Packet Co. v. Keokuk and H.
Bridge Co., 31 Fed. Rep., 755; Hannibal and St. Joseph R. R. Co. v. Missouri River
Packet Co., 125 U. S., 260.
1 When a bridge over a navigable river is authorized by a State legislature, reserv-
ing a right to require a draw in the bridge on a certain contingency, Congress, on
MILITARY LAWS OF THE UNITED STATES. 421
1117. Whenever, in the opinion of the Secretary of
War, the public interests require it, he may make rules
and regulations to govern the opening of drawbridges for
the passage of vessels and other water-crafts, and such
rules and regulations, when so made and published, shall
have the force of law, and any violation thereof shall be
punished as hereinbefore provided.1 Ibid.
HARBOR LINES.
Par.
1120. Restriction on dredging.
1121. Harbor lines in District of Columbia.
Par.
1118. Establishment of harbor lines.
1119. Permits for extensions, etc.
1118. Where it is made manifest to the Secretary of
War that the establishment of harbor lines is essential to nMvar303'pls
the preservation of and protection of harbors he may, and
is hereby, authorized to cause such lines to be established,
beyond which no piers, wharves, bulkheads, or other
works shall be extended or deposits made, except under
such regulations as may be prescribed from time to time
by him.2 Sec. 11, act of March 3, 1899 (30 Stat. Z., 1151).
1119. Whenever the Secretary of War grants to any
person or persons permission to extend piers, wharves,
bulkheads, or other works, or to make deposits in any
tidal harbor or river of the United States beyond any- har-
bor lines established under authority of the United States,
he shall cause to be ascertained the amount of tide water ibui.
displaced by any such structure, or by any such deposits,
and he shall, if he deem it necessary, require the parties to
whom the permission is given to make compensation for
such displacement either by excavating in some part of
the harbor, including tide-water channels between high
and low water mark, to such extent as to create a basin
for as much tide water as may be displaced by such struc-
assuming control of the river, may require the construction of a draw in the bridge
upon the happening of such a contingency, without providing for compensation to
the bridge owners. U. S. v. City of Moline, 82 Fed. Rep., 592. As every bridge con-
structed over the navigable waters of the United States constitutes an obstruction to
the free navigation thereof, and as the Congress is, by the Constitution, made the
exclusive judge of the extent and amount of the obstruction that shall be authorized
in any case, that body reserves to itself the right to authorize the construction of
bridges over such waters. The nearest approach to general legislation on this sub-
ject will be found in the act of February 14, 1883 (22 Stat. L., 414), authorizing the
construction of bridges across the Ohio River.
/The fact that States on either side of a navigable river have in force statutes pro-
hibiting the doing of certain kinds of work on Sunday does not relieve the owner of
a bridge spanning the river from the duty of opening the draw on Sunday to admit
the passage of vessels engaged in commerce on the river. Boland v. Combination
Bridge Co., 94 Fed. Rep., 888. See also note 1 to paragraph 1115, ante.
2 This section replaces section 12 of the act of September 19, 1890 (26 Stat, L., 455),
in ~>ari materia.
422
MILITARY LAWS OF THE UNITED STATES.
tion °n
ring
linc8
Mar. 3, 1899,
8, v. 30, p. 1378.
ture or by such deposits, or in any other mode that may
be satisfactory to him.1 Ibid.
112°- No money appropriated for the improvement of
1'^61*8 and harbors in this act or hereafter shall be
expended for dredging inside of harbor lines duly estab-
lished. Sec. 5, act of July 13, 1892 (27 Stat. L\, 111).
1121- The harbor lines of the District of Columbia shall
be determined by the Chief of Engineers, United States
Army, and the Commissioners of the District of Columbia,
subject to the approval of the Secretary of War. Sec. 3,
act of March 3, 1899 (30 Stat. L., 1378).
INJURIES TO GOVERNMENT WORKS.
OBSTRUCTIONS TO NAVIGATION.
Par.
1122. Obstructions to navigation.
1123. Penal clauses.
1124. Deposits in navigable waters.
1125. Use of public works, permits.
1126. Anchoring vessels, etc.
1 127. Penal clauses.
navigation0118 to
Par.
1128. Floating loose timber and logs.
1129. The same, regulations for floating.
1130. Right to amend.
1131. Civil actions not affected.
1132. Department of Justice to conduct
proceedings.
s. 10^30. 3p.iiti.'n£
creati°n of any obstruction not affirmatively
authorized by Congress to the navigable capacit}T of any
of the waters of the United States is hereby prohibited,
and it shall not be lawful to build or commence the build-
anJ wharf, pier, dolphin, boom, weir, breakwater,
bulkhead, jetty, or other structures in any port, road-
stead, haven, harbor, canal, navigable river, or other
water of the United States outside established harbor lines,
or where no harbor lines have been established, except
on plans recommended by the Chief of Engineers and
authorized by the Secretary of War; and it shall not be
lawful to excavate or fill or in any manner to alter or
modify the course, location, condition, or capacity of any
port, roadstead, haven, harbor, canal, lake, harbor of ref-
uge, or inclosure within the limits of any breakwater, or
of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of
Engineers and authorized by the Secretary of War prior
1 For penalty for violations of this section see section 12 of the act of March 3, 1899
(30 Stat. L., 1151), paragraph 1123, post. This section replaces section 9, act of
August 17, 1894 (28 Stat. L., 364). Section 17 of the act of March 3, 1899 (30 ibid.,
1153), contains the requirement that the Department of Justice shall conduct the
legal proceedings necessary to the enforcement of the provisions of sections 9 to 16,
inclusive, of that enactment.
MILITARY LAWS OF THE UNITED STATES. 423
to beginning the same.1 Sec. 10 ', act of March 3, 1899 (30
Stat. Z., 1151).
1123. Every person and every corporation that shall gS^JJgf68*
violate any of the provisions of sections nine, ten, and
eleven of this act shall be deemed guilty of a misdemeanor,
and on conviction thereof shall be punished by a fine not
exceeding twenty -five hundred dollars nor less than five
hundred dollars, or by imprisonment (in the case of a
natural person) not exceeding one year, or by both such
punishments, in the discretion of the court. And, further,
the removal of any such structures or parts of structures
erected in violation of the provisions of the said sections
may be enforced by the injunction of any circuit court
exercising jurisdiction in any district in which such struc-
tures may exist, and proper proceedings to this end may
be instituted under the direction of the Attorney -General
of the United States.2 Sec. 12, act of March 3, 1899 (30
Stat. Z., 1151).
1124. It shall not be lawful to throw, discharge, or Deposits in
deposit, or cause, suffer, or procure to be thrown, dis- waters. g a
charged, or deposited either from or out of any ship, g.isfvfso.p.iiw!
barge, or other floating craft of any kind, or from the
shore, wharf, manufacturing establishment, or mill of any
kind, any refuse matter of any kind or description what-
ever other than that flowing from streets and sewers and
passing therefrom in a liquid state, into any navigable
1This section replaces section 9 of the act of September 19, 1890 (26 Stat. L., 454),
and section 3 of the act of July 13, 1892 (27 ibid., 110), inpari materia. In the case
of Leovy v. U. S. , it was decided by the circuit court of appeals for the fifth circuit, in
February, 1899, that the replaced section of the act of July 13, 1892, was constitu-
tional, and that a State had no authority, under its police power, to close any navigable
water of the United States, though located wholly within the limits of the State, for
the purpose of reclamation of swamp lands, without the consent of the Federal Gov-
ernment. Leovy y. U. S., 92 Fed. Rep., 344. When Congress has assumed juris-
diction over a navigable river lying wholly within one State, Congress has power to
order obstructions to navigation removed, even though their construction was author-
ized by the State. U. S. v. City of Moline, 82 Fed. Rep., 592. But the right of
Congress to remove the obstruction does not, of itself, exempt the Government of
the United States from the duty of making just compensation for such property
rights as are taken. Monongahela Nav. Co. v. U. S., 148 U. S., 622.
Wharves are a peculiar kind of property, which, though standing on terra firma,
are so far marine in their uses and purposes as to come within admiralty jurisdiction.
In England it is generally held that they extend to the low-water mark. In this
country, with the extending of admiralty jurisdiction to our inland seas and navi-
gable rivers, it has been held that they may extend to the point of navigability.
The owner has not an unlimited property in them. If the wharf be not reserved for
his actual use, or of some one acquiring the right under him, it is open to the public,
and any vessel may make fast to and use it. Neither can the owner charge an
unreasonable price for wharfage. Clifford v. U. S., 34 Court of Claims, 223,230;
The Genesee Chief, 12 Howard, 443; Dutton v. Strong, 1 Black, 1; Cannon v. New
Orleans, 20 Wallace, 577; Ex parte Easton, 95 U. S., 8; Packet Co. v. Keokuk, ibid,
80; Packet Co. v. St. Louis, 100 U. S., 423.
3 See note to paragraph 1119, ante; see also paragraph 1132, post.
424 MILITARY LAWS OF THE UNITED STATES.
water of the United States, or into any tributary of any
navigable water from which the same shall float or be
washed into such navigable water; and it shall not be law-
ful to deposit, or cause, suffer, or procure to be deposited
material of any kind in any place on the bank of any navi-
gable water, or on the bank of any tributary of any navi-
gable water, where the same shall be liable to be washed
into such navigable water, either by ordinary or high
tides, or by storms or floods, or otherwise, whereby navi-
gation shall or may be impeded or obstructed: Provided,
That nothing herein contained shall extend to, apply to, or
prohibit the operations in connection with the improve-
ment of navigable waters or construction of public works,
considered necessary and proper by the United States
officers supervising such improvement or public work:
And provided further, That the Secretary of War, when-
ever in the judgment of the Chief of Engineers anchorage
and navigation will not be injured thereby, may permit
the deposit of any material above mentioned in navigable
waters, within limits to be denned and under conditions to
be prescribed by him, provided application is made to him
prior to depositing such material; and whenever any per-
mit is so granted the conditions thereof shall be strictly
complied with, and any violation thereof shall be unlaw-
ful.1 Sec. 13, act of March 3, 1899 (30 Stat. L., 115%).
works etcpublic H25. It shall not be lawful for any person or persons
sec. 14, ibid, ^o take possession of or make use of for any purpose,
or build upon, alter, deface, destroy, move, injure, ob-
struct by fastening vessels thereto or otherwise, or in any
manner whatever impair the usefulness of any sea wall,
bulkhead, jetty, dike, levee, wharf, pier, or other work
built by the United States, or any piece of plant, floating
or otherwise, used in the construction of such work under
the control of the United States, in whole or in part, for
the preservation and improvement of any of its naviga-
ble waters or to prevent floods, or as boundaiy marks,
tide gauges, surveying stations, buoys, or other estab-
lished marks, nor remove for ballast or other purpose?
any stone or other material composing such works: Pro
vided, That the Secretary of War may, on the recommen-
dation of the Chief of Engineers, grant permission for
the temporary occupation or use of any of the aforemen-
tioned public works when in his judgment such occupation
^his section replaces section 6 of the act of Sept/ir>ber 1«, 1890 (20 Stat. L., 426),
in pari materia.
MILITARY LAWS OF THE UNITED STATES. 425
or use will not be injurious to the public interest.1 Sec.
14, ibid.
1126. It shall not be lawful to tie up or anchor vessels sefsn^coringves-
or other craft in navigable channels in such a manner as Sec- 15> md-
to prevent or obstruct the passage of other vessels or
craft; or to voluntarily or carelessly sink, or permit or
cause to be sunk, vessels or other craft in navigable chan-
nels; or to float loose timber and logs, or to float what is
known as sack rafts of timber and logs in streams or chan-
nels actually navigated by steamboats in such manner as
to obstruct, impede, or endanger navigation. And when-
ever a vessel, raft, or other craft is wrecked and sunk in
a navigable channel, accidentally or otherwise, it shall be
the duty of the owner of such sunken craft to immediately
mark it with a buoy or beacon during the day and a lighted
lantern at night, and to maintain such marks until the
sunken craft is removed or abandoned, and the neglect or
failure of the said owner so to do shall be unlawful; and it
shall be the duty of the owner of such sunken craft to
commence the immediate removal of the same, and prose-
cute such removal diligently, and failure to do so shall be
considered as an abandonment of such craft, and subject
the same to removal by the United States as hereinafter
provided for.2 Sec. 15, ibid.
1127. Every person and every corporation that shall fJ£a1V5£fs'
violate, or that shall knowingly aid, abet, authorize, or
instigate a violation of the provisions of sections thir-
teen, fourteen, and fifteen of this act shall be guilty of a
misdemeanor, and on conviction thereof shall be punished
by a fine not exceeding twenty-five hundred dollars nor
less than five hundred dollars, or by imprisonment (in the
case of a natural person) for not less than thirty days nor
1 This section replaces section 3 of the act of August 14, 1876 (19 ibid., 132, 139), and
section 9 of the act of September 19, 1890 (26 Stat. L., 426). Section 9 of the act of
March 3, 1899, contained a provision directing the Secretary of War "to cause to be
prepared and reported to Congress a list of all piers, wharves, and other structures
or property pertaining to river and harbor works belonging to the Government of
the United States now occupied by private corporations or persons, together with
the terms upon which such piers, wharves, or other property are occupied, and the
date of the agreement or permission to occupy the same, and shall make such recom-
mendations as he may deem desirable in connection therewith."
2 The construction, without the authority of the Secretary of War, of weirs in a
harbor, which is navigable water of the United States, outside of established harbor
lines (or where there are no harbor lines established), is, under section 7, act of
September 19, 1890, unlawful when the same will be detrimental to navigation.
And whether or not the persons who constructed such weirs had any license from
the town is immaterial. Dig. Opin. J. A. G., par. 1783.
The United States may avail itself of the remedy by injunction to protect from
injury improvements in navigable waters made under the authority of Congress.
XVII Opin. Att. Gen., 279; U. S. v. Duluth, 4 Dillon, 469.
426 MILITARY LAWS OF THE UNITED STATES.
more than one year, or by both such fine and imprison-
ment, in the discretion of the court, one-half of said fine
to be paid to the person or persons giving information
which shall lead to conviction. And any and every mas-
ter, pilot, and engineer, or person or persons acting in
such capacity, respectively, on board of any boat or vessel
who shall knowingly engage in towing any scow, boat, or
vessel loaded with any material specified in section thir-
teen of this act to any point or place of deposit or dis-
charge in any harbor or navigable water, elsewhere than
within the limits defined and permitted by the Secretary
of War, or who shall willfully injure or destroy any work
of the United States contemplated in section fourteen of
this act, or who shall willfully obstruct the channel of any
waterway in the manner contemplated in section fifteen
of this act, shall be deemed guilty of a violation of this
act, and shall upon conviction be punished as hereinbefore
provided in this section, and shall also have his license
revoked or suspended for a term to be fixed by the judge
before whom tried and convicted. And any boat, vessel,
scow, raft, or other craft used or employed in violating
any of the provisions of sections thirteen, fourteen, and
fifteen of this act shall be liable for the pecuniaiy penal-
ties specified in this section, and in addition thereto for
the amount of the damages done by said boat, vessel,
scow, raft, or other craft, which latter sum shall be placed
to the credit of the appropriation for the improvement of
the harbor or waterway in which the damage occurred,
and said boat, vessel, scow, raft, or other craft may be pro-
ceeded against summarily by way of libel in any district
court of the United States having jurisdiction thereof.1
Sec. 16, ibid.
gs^tc6 1128- Tne prohibition contained in section fifteen2 of
*^72' 1900' v- the river and harbor act approved March third, eighteen
hundred and ninety-nine, against floating loose timber and
logs, or sack rafts, so called, of timber and logs in streams
or channels actually navigated by steamboats, shall not
apply to any navigable river or waterway of the United
States or any part thereof whereon the floating of loose
timber and logs and sack rafts of timber and logs is the
principal method of navigation. But such method of
navigation on such river or waterway or part thereof
shall be subject to the rules and regulations prescribed by
1 This section replaces section 10 of the act of September 19, 1890 (26 Stat. L., 454).
2 Paragraph 1126, ante.
MILITARY LAWS OF THE UNITED STATES. 427
the Secretary of War as hereinafter provided. Act of
May 9, 1900 (31 Stat. Z., 17$).
1129. The Secretary of War shall have power, and he fl oae|
is hereby authorized and directed, within the shortest JJ^
practicable time after the passage hereof, to prescribe tegjcof2
rules and regulations, which he may at any time modify,
to govern and regulate the floating of loose timber and
logs, and sack rafts (so called) of timber and logs and other
methods of navigation on the streams and waterways, or
any thereof, of the character, as to navigation, in section
one hereof described. The said rules and regulations shall
be so framed as to equitably adjust conflicting interests
between the different methods or forms of navigation;
and the said rules and regulations shall be published at
least once in such newspaper or newspapers of general
circulation as in the opinion of the Secretary of War shall
be best adapted to give notice of said rules and regula-
tions to persons affected thereby and locally interested
therein. And all modifications of said rules and regula-
tions shall be similarly published. And such rules and
regulations, when so prescribed and published as to any
such stream or waterway, shall have the force of law, and
any violation thereof shall be a misdemeanor, and every
person convicted of such violation shall be punished by a
fine of not exceeding two thousand five hundred dollars
nor less than five hundred dollars, or by imprisonment (in
case of a natural person) for not less than thirty days nor
more than one year, or by both such fine and imprison-
ment, in the discretion of the court: Provided, That the
proper action to enforce the provisions of this section
may be commenced before any commissioner, judge, or
court of the United States, and such commissioner, judge,
or court shall proceed in respect thereto as authorized by
law in the case of crimes or misdemeanors committed
against the United States. Sec. 8, ibid.
1130. The right to alter, amend, or repeal this act at
any time is hereby reserved. Sec. 3, ibid.
1131. This act shall not, nor shall any rules or regula- nocti^1ect^tions
tions prescribed thereunder, in any manner affect any sec.4,twd.
civil action or actions heretofore commenced and now
pending to recover damages claimed to have been sus-
tained by reason of the violation of any of the terms of
said section fifteen, as originally enacted, or in violation
c, any other law.1 Sec. 4, ibid.
lTbe act of -March 3, 1899 (30 Stat. L., 1155), contains a similar requirement.
428 MILITARY LAWS OF THE UNITED STATES.
jmteicertSeicon- 1132' The Department of Justice shall conduct the legal
ceeCdingfal pr° proceedings necessary to enforce the foregoing provisions
i7?var3o!'p8ii53S' °^ sections nine to sixteen, inclusive, of this act; and it
shall be the duty of district attorneys of the United States
to vigorously prosecute all offenders against the same
whenever requested to do so by the Secretary of War or
by any of the officials hereinafter designated, and it shall
furthermore be the duty of said district attorneys to report
to the Attorney-General of the United States the action
taken by him against offenders so reported, and a trans-
script of such reports shall be transmitted to the Secretary
of War by the Attorney-General; and for the better
enforcement of the said provisions and to facilitate the
detection and bringing to punishment of such offenders,
the officers and agents of the United States in charge of
river and harbor improvements, and the assistant engineers
and inspectors employed under them by authority of the
Secretary of War, and the United States collectors of cus-
toms and other revenue officers, shall have power and
authority to swear out process and to arrest and take into
custody, with or without process, any person or persons
who may commit any of the acts or offenses prohibited by
the aforesaid sections of this act, or who may violate any
of the provisions of the same: Provided, That no person
shall be arrested without process for any offense not com-
mitted in the presence of some one of the aforesaid officials:
And provided further, That whenever any arrest is nmde
under the provisions of this act, the person so arrested
shall be brought forthwith before a commissioner, judge,
or court of the United States for examination of the
offenses alleged against him; and such commissioner, judge,
or court shall proceed in respect thereto as authorized by
law in case of crimes against the United States. Sec. 17.
act of March 3, 1899 (SO Stat. L., 1153}.
OBSTRUCTION OF NAVIGATION BY SUNKEN VESSELS, ETC.
Par.
1132a. Sunken vessels, removal.
Par.
1133. Removal of wrecks, etc. ; sale.
se?suetcen ves" 1132a. Whenever the navigation of any river, lake, har-
19^30 Vii&. S ^or' sound? bav? canal, or other navigable waters of the
United States shall be obstructed or endangered by any
sunken vessel, boat, water craft, raft, or other similar
obstruction, and such obstruction has existed for a longer
period than thirty days, or whenever the abandonment of
MILITARY LAWS OF THE UNITED STATES. 429
such obstruction can be legally established in a less space
of time, the sunken vessel, boat, water craft, raft, or other
obstruction shall be subject to be broken up, removed,
sold, or otherwise disposed of by the Secretary of War at
his discretion, without liability for any damage to the
owners of the same: Provided, That in his discretion, the
Secretary of War may cause reasonable notice of such
obstruction of not less than thirty days, unless the legal
abandonment of the obstruction can be established in a
less time, to be given by publication, addressed "To whom
it may concern," in a newspaper published nearest to the
locality of the obstruction, requiring the removal thereof:
And provided also, That the Secretary of War may, in his
discretion, at or after the time of giving such notice, cause
sealed proposals to be solicited by public advertisement,
giving reasonable notice of not less than ten days, for the
removal of such obstruction as soon as possible after the
expiration of the above specified thirty days' notice, in
case it has not in the meantime been so removed, these pro-
posals and contracts, at his discretion, to be conditioned
that such vessel, boat, water craft, raft, or other obstruc-
tion, and all cargo and property contained therein, shall
become the property of the contractor, and the contract
shall be awarded to the bidder making the proposition
most advantageous to the United States : Provided, That
such bidder shall give satisfactory security to execute the
work: Provided further, That any money received from
the sale of any such wreck, or from any contractor for
the removal of wrecks, under this paragraph shall be
covered into the Treasury of the United States.1 Sec.
19, act of March 3, 1899 (30 Stat. Z., 1154).
1133. Under emergency, in the case of any vessel, boat, w^cS^Ic!1 °f
water craft, or raft, or other similar obstruction, sinking Sec< 20j Md-
or grounding, or being unnecessarily delayed in any Gov-
ernment canal or lock, or in any navigable waters men-
tioned in section nineteen, in such manner as to stop,
seriously interfere with, or specially endanger navigation,
in the opinion of the Secretary of War, or any agent of
the United States to whom the Secretary may delegate
proper authority, the Secretary of War or any such agent
shall have the right to take immediate possession of such
1 Owners of a vessel who scuttle and sink her in a harbor while on fire, for the
purpose of saving her rigging and spars, and abandoning her to the underwriters,
may be compelled to remove. the hull, as an obstruction to navigation, under sec-
tion 10 of the act of September, 19, 1890. U. S. v. Hall, 63, Fed. Rep., 472.
430 MILITARY LAWS OF THE UNITED STATES.
boat, vessel, or other water craft, or raft, so far as to
remove or to destroy it and to clear immediately the canal,
lock, or navigable waters aforesaid of the obstruction
thereby caused, using his best judgment to prevent any
unnecessary injury; and no one shall interfere with or
prevent such removal or destruction: Provided, That the
officer or agent charged with the removal or destruction
of an obstruction under this section may in his discretion
give notice in writing to the owners of any such obstruc-
tion requiring them to remove it: And provided further,
That the expense of removing any such obstruction as
aforesaid shall be a charge against such craft and cargo;
and if the owners thereof fail or refuse to reimburse the
United States for such expense within thirty days after
notification, then the officer or agent aforesaid may sell
the craft or cargo, or any part thereof that may not have
been destroyed in removal, and the proceeds of such sale
shall be covered into the Treasury of the United States.
Sec. 20, ibid.
Such sum of money as may be necessary to execute this
section and the preceding section of this act is hereby
appropriated out of any money in the Treasury not other-
wise appropriated, to be paid out on the requisition of the
Secretary of War.
All laws or parts of laws inconsistent with the fore-
going sections ten to twenty, inclusive, of this act are
hereby repealed: Provided, That no action begun, or
right of action accrued, prior to the passage of this act
shall be affected by this repeal. Sec. 20, ibid.
DEPOSITS IN NEW YORK HARBOR.
Par.
1134. Deposits in New York Harbor for-
bidden; penalty.
1135. Punishment of officer of boat.
1136. Supervisors to designate place of
deposit; permits.
1137. Penalty for discharging elsewhere.
1138. Boats to carry name painted on
stern.
Par.
1139. Inspectors.
1140. Bribery; penalty.
1141. Return of permits; penalty.
1142. Disposal of matter dredged.
1143. Supervisor of harbor.
1144. Fishing in ship channels forbidden.
1145. Penalties.
1146. Arrests.
Harbor injurf 1134. The placing, discharging, or depositing, by any
forbiddtnS-itepen- process or in any manner, of refuse, dirt, ashes, cinders,
alsec 3 Aug 5 mu(*> sand, dredgings, sludge, acid, or any other matter
1886, v. 24, p. 329; Of any kind, other than that flowing from streets, sewers,
sec. 1, June 29, J ~
1888, v. 25, p. 209. and passing therefrom in a liquid state, in the tidal waters
of the harbor of New YorkA or its adjacent or tributary
MILITARY LAWS OF THE UNITED STATES. 431
waters, or in those of Long Island Sound, within the limits
which shall be prescribed by the supervisor of the harbor,
is hereby strictly forbidden, and every such act is made a
misdemeanor, and every person engaged in or who shall
aid, abet, authorize, or instigate a violation of this section,
shall, upon conviction, be punishable by a fine or impris-
onment, or both, such fine to be not less than two hundred
and fifty dollars nor more than two thousand five hundred
dollars, and the imprisonment to be not less than thirty
days nor more than one year, either or both united, as the
judge before whom conviction is obtained shall decide, one
half of said fine to be paid to the person or persons giving
information which shall lead to conviction of this misde-
meanor.1 Sec. 1, act of June 29, 1888 (25 Stat. L., 209).
1135. Any and every master and engineer, or person or Punishment of
r . J . officer of boat.
persons acting in such capacity, respectively, on board of sec. 2, June 29,
* ... . 01 • • 1888, v. 25, p. 209.
any boat or vessel, wno snail knowingly engage in towing
any scow, boat, or vessel loaded with any such prohibited
matter to any point or place of deposit, or discharge in the
waters of the harbor of New York, or in its adjacent or
tributary waters, or in those of Long Island Sound, or to
any point or place elsewhere than within the limits defined
and permitted by the supervisor of the harbor hereinafter
mentioned, shall be deemed guilty of a violation of this
act, and shall, upon conviction, be punishable as herein-
before provided for offenses in violation of section one of
this act, and shall also have his license revoked or suspended
for a term to be fixed by the judge before whom tried and
convicted.2 Sec. 2, act of June 29, 1888 (25 Stat. L., 209).
1136. In all cases of receiving on board of any scows 01'
boats such forbidden matter or substance as herein de-
scribed, the owner or master, or person acting in
capacity on board of such scows or boats, before proceed- isKv! 28, p.86o.
1 The Erie and Atlantic basins, in New York Harbor, are private property, but
they are also navigable waters of the United States, and the owners of trie soil under
the water hold the title subject to the rights of the public to navigate such waters,
and are therefore not empowered to fill in the basins and deprive the public of their
use. Moreover they are waters over which the United States has expressly assumed
jurisdiction, in prohibiting, by the act of June 29, 1888, the dumping of deposits "in
the tidal waters of the harbor of New York, or its adjacent or tributary waters,
within the limits which shall be prescribed by the supervisor of the harbor." Held,
that the subsequent establishment, under section 12, of the act of August 11, 1888, of
harbor lines in that harbor outside these basins did not oust this jurisdiction, but
that the act of June 29, 1888, was still in force. Dig. Opin. J. A. G., par. 1786.
Held, that the prohibition, by section 6, act of September 19, 1890, of the dumping
of ballast, could not legally be enforced in New York Harbor beyond the three-mile
limit. Ibid., par. 1787. See also XX Opin. Att. Gen., 293.
2 The act of June 29, 1888, 25 Stat. L., 209, as amended by the act of August 18,
1894 (28 Stat. L., 360), prohibiting the deposit of refuse in New York Harbor without
a permit from the supervisor of the harbor, is a valid exercise of the police powers
of Congress over navigation and commerce. U. S. v. Romard, 89 Fed. Kep., 156.
432
MILITARY LAWS OF THE UNITED STATES.
Permits.
penalty.
ing to take or tow the same to the place of deposit, shall
apply for and obtain from the supervisor of the harbor
appointed hereunder a permit defining the precise limits
within which the discharge of such scows or boats may be
made; and it shall not be lawful for the owner or master,
or person acting in such capacity, of any tug or towboat,
to tow or move any scow or boat so loaded with such for-
bidden matter until such permit shall have been obtained;
and every person violating the foregoing provisions of this
section shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by a fine of not more
than one thousand nor less than five hundred dollars, and
in addition thereto the master of any tug or towboat so
offending shall have his license revoked or suspended for
a term to be fixed by the judge before whom tried and
convicted. Sec. 3, act of August 17, 1894 (®$ Stat. L. , 360).
1137. And any deviation from such dumping or discharg-
ing place specified in such permit shall be a misdemeanor,
and the owner and master, or person acting in the capacity
of master, of any scows or boats dumping or discharging
such forbidden matter in any place other than that speci-
fied in such permit shall be liable to punishment therefor,
as provided in section one of the said act of June twenty-
ninth, eighteen hundred and eighty-eight; and the owner
and master, or person acting in the capacity of master,
of any tug or towboat towing such scows or boats shall be
liable to equal punishment with the owner and master, or
person acting in the capacity of master, of the scows or
boats; and, further, every scowman or other employee on
board of both scows and towboats shall be deemed to have
knowledge of the place of dumping specified in such per-
mit, and the owners and masters, or persons acting in the
capacity of masters, shall be liable to punishment, as afore-
said, for any unlawful dumping, within the meaning of this
act or of the said act of June twenty-ninth, eighteen hun-
dred and eighty-eight, which may be caused by the negli-
gence or ignorance of such scowman or other employee;
and, further, neither defect in machinery nor avoidable
accidents to scows or towboats, nor unfavorable weather,
nor improper handling or moving of scows or boats of any
kind whatsoever, shall operate to release the owners and
masters and employees of scows and towboats from the
penalties hereinbefore mentioned. Ibid.
1138. Every scow or boat engaged in the transportation
of dredgings, earth, sand, mud, cellar dirt, garbage, or other
MILITARY LAWS OF THE UNITED STATES.
433
Ibid.
Duties.
Arresl*.
offensive material of any description shall have its name
or number and owner's name painted in letters and num-
bers at least fourteen inches long on both sides of the scow
or boat; these names and numbers shall be kept distinctly
legible at all times, and no scow or boat not so marked
shall be used to transport or dump any such material. Ibid.
1139. The supervisor of the harbor of New York, desig- Inspectors.
nated as provided in section five of the said act of June
twenty-ninth, eighteen hundred and eighty-eight, is author-
ized and directed to appoint inspectors and deputy inspect-
ors, and, for the purpose of enforcing the provisions of
this act and of the act aforesaid, and of detecting and
bringing to punishment offenders against the same, the
said supervisor of the harbor, and the inspectors and
deputy inspectors so appointed by him, shall have power
and authority:
First. To arrest and take into custody, with or without
process, any person or persons who may commit any of the
acts or offenses prohibited by this section and by the act
of June twenty-ninth, eighteen hundred and eighty-eight,
aforesaid, or who may violate any of the provisions of the
same: Provided, That no person shall be arrested without
process for any offense not committed in the presence of
the supervisor or his inspectors or deputy inspectors, or
either of them: .And provided further, That whenever any
such arrest is made the person or persons so arrested shall
be brought forthwith before a commissioner, judge, or court
of the United States for examination of the offenses alleged
against him; and such commissioner, judge, or court shall
proceed in respect thereto as authorized by law in case of
crimes against the United States.
Second. To go on board of any scow or towboat engaged
in unlawful dumping of prohibited material, or in moving
the same without a permit as required in this section of
this act, and to seize and hold said boats until they are
discharged by action of the commissioner, judge, or court
of the United States before whom the offending persons
are brought.
Third. To arrest and take into custody any witness or custody of wit-
witnesses to such unlawful dumping of prohibited material,
the said witnesses to be released under proper bonds.
Fourth. To go on board of any towboat having in tow Accompanying
scows or boats loaded with such prohibited material, and
accompany the same to the place of dumping, whenever
22924—08 28
Secure of
Tioats.
towboats.
434 MILITAEY LAWS OF THE UNITED STATES.
such action appears to be necessary to secure compliance
with the requirements of this act and of the act aforesaid.
etc?wo?ksnggas' Fifth. To enter gas and oil works and all other manu-
facturing works for the purpose of discovering the disposi-
tion made of sludge, acid, or other injurious material, when-
ever there is good reason to believe that such sludge, acid,
or other injurious material is allowed to run into the tidal
waters of the harbor in violation of section one of the afore-
said act of June twenty-ninth, eighteen hundred and
eighty-eight. Ibid.
^Bribery; pen- H4Q. Every person who, directly or indirectly, gives any
ibid. sum of mOney or other bribe, present, or reward, or makes
any offer of the same to any inspector, deputy inspector, or
other employee of the office of the supervisor of the harbor
with intent to influence such inspector, deputy inspector,
or other employee to permit or overlook any violation of
the provisions of this section or of the said act of June
twenty-ninth, eighteen hundred and eighty-eight, shall, on
conviction thereof, be fined not less than five hundred dol-
lars nor more than one thousand dollars, and be imprisoned
not less than six months nor more than one year. Ibid.
m5s.turn °f Per 1141, Every permit issued in accordance with the provi-
sions of this section of this act which may not be taken up
by an inspector or deputy inspector shall be returned within
forty-eight hours after issuance to the office of the super-
visor of the harbor; such permit shall bear an indorsement
by the master of the towboat, or the person acting in such
capacity, stating whether the permit has been used, and if
Penalty. 8O^ the time and place of dumping. Any person violating
the provisions of this section shall be liable to a fine of not
more than five hundred dollars nor less than one hundred
dollars. Ibid.
maVte? dredged* 1142- A11 mudi dirt> sand? dredgings, and material of
i888Cv425Upe2io' every kind and description whatever taken, dredged, or
excavated from any slip, basin, or shoal in the harbor of
New York, or the waters adjacent or tributary thereto, and
placed on any boat, scow, or vessel for the purpose of being
taken or towed upon the waters of the harbor of New York
to a place of deposit, shall be deposited and discharged at
such place or within such limits as shall be defined and
specified by the supervisor of the harbor, as in the third
section of this act prescribed, and not otherwise. Every
person, firm, or corporation being the owner of any slip,
basin, or shoal, from which such mud, dirt, sand, dredgings,
and material shall be taken, dredged, or excavated, and
MILITARY LAWS OF THE UNITED STATES. 435
every person, firm, or corporation in any manner engaged in
the work of dredging or excavating any such slip, basin, or
shoal, or of removing such mud, dirt, sand, or dredgings
therefrom, shall severally be responsible for the deposit
and discharge of all such mud, dirt, sand, or dredgings at
such place or within such limits so defined and prescribed
by said supervisor of the harbor; and for every violation
of the provisions of this section the person offending shall
be guilty of an offense against this act, and shall be pun-
ished by a fine equal to the sum of five dollars for every
cubic yard of mud, dirt, sand, dredgings, or material not
deposited or discharged as required by this section. Any
boat or vessel used or employed in violating any provision
of this act shall be liable to the pecuniary penalties im-
posed thereby, and may be proceeded against summarily
by way of libel in any district court of the United States
having jurisdiction thereof.1 Sec. h act of June 29, 1888,
(86 Stat. L., 210).
Supervisor •£
1143. A line officer of the Navy shall be designated by
the President of the United States as supervisor of the
harbor, to act under the direction of the Secretary of War
in enforcing the provisions of this act, and in detecting
offenders against the same. This officer shall receive the
sea pay of his grade, and shall have personal charge and
supervision under the Secretary of War, and shall direct
the patrol boats and other means to detect and bring to
punishment offenders against the provisions of this act.
Sec. <5, ibid.
1144. It shall be unlawful for any person or persons to in
engage in fishing or dredging for shell fish in any of the °sec. 2?lug. 17,
channels leading to and from the harbor of New York, or
to interfere in any way with the safe navigation of those
channels by ocean steamships and ships of deep draft.
1145. Any person or persons violating the foregoing iud.
provisions of this section shall be deemed guilty of a mis-
demeanor, and on conviction thereof shall be punished by
fine or imprisonment, or both, such fine to be not more
than two hundred and fifty dollars nor less than fifty dol-
lars, and the imprisonment to be not more than six months
1 Where ashes are dumped, in an unlawful place, from the deck of an ocean steamer
by her firemen, presumably acting under orders from some superior officer of the
steamer, the steamer at the time being engaged in performing a freighting voyage to
sea, and the dumping of ashes accumulated at her furnace being a necessary inci-
dent of her navigation, the statute takes effect and renders the steamer liable as
having herself violated the law. The Bombay, 46 Fed. Rep., 665. See also case of
the Anjer Head, 46 Fed. Rep., 664. See also Dig. Opin. J. A. G., par. 1787; and XX
Opin. Att. Gen., 293.
436
MILITARY LAWS OF THE UNITED STATES.
Arrests.
Process.
nor less than thirty days, either or both united, as the
judge before whom conviction is obtained shall decide.
Ibid.
1146. It shall be the duty of the United States super-
visor of the harbor to enforce this act, and the deputy
inspectors of the said supervisor shall have authority to
arrest and take into custody, with or without process, any
person or persons who may commit any of the acts or
offenses prohibited by this act: Provided, That no person
shall be arrested without process for any offense not com-
mitted in the presence of the supervisor or his inspector
or deputy inspectors, or either of them: And provided
proceedings, further, That whenever any such arrest is made the per-
son or persons so arrested shall be brought forthwith before
a commissioner, judge, or court of the United States for
examination of the offenses alleged against him; and such
commissioner, judge, or court shall proceed in respect
thereto as authorized by law in case of crimes against the
United States. Sec. 2, act of August 17, 1894 (%8 Stat.
L.,360).
HARBOR REGULATIONS FOR THE DISTRICT OF COLUMBIA.
Par.
1147. District Commissioners to prepare
regulations.
1148. Unlawful deposits forbidden.
Par.
1149. Penalty.
1150. Limitation.
1^7. It shall be unlawful for any owner or occupant of
trictof Columbia. any wharf or dock, any master or captain of any vessel, or
29, p. 126.' any person or persons to cast, throw, drop, or deposit any
ballast, dirt, oyster shells, or ashes in the water in any part
of the Potomac River or its tributaries in the District of
Columbia, or on the shores of said river below high-water
mark, unless for the purpose of making a wharf, after
permission has been obtained from the Commissioners of
the District of Columbia for that purpose, which wharf
shall be sufficiently inclosed and secured so as to prevent
injury to navigation. Act of May 19, 1896 (29 Stat. L.,
126).
unlawful de- 1148. It shall be unlawful for any owner or occupant of
posits forbidden. .
sec. 2, ibid. any wharf or dock, any captain or master of any vessel, or
any other person or persons to cast, throw, deposit, or drop
in any^ dock or in the waters of the Potomac River or its
tributaries in the District of Columbia any dead fish, fish
offal, dead animals of any kind, condemned oysters in the
MILITARY LAWS OF THE UNITED STATES. 437
shell, watermelons, cantaloupes, vegetables, fruits, shav-
ings, hay, straw, ice, snow, filth, or trash of any kind
whatsoever. Sec. 2, ibid.
1149. Any person or persons violating any of the pro-
visions of this act shall be deemed guilty of a misdemeanor,
and on conviction thereof in the police court of the District
of Columbia shall be punished by a fine not exceeding one
hundred dollars or by imprisonment not exceeding six
months, or by both such punishments, in the discretion of
the court. Sec. 3, ibid.
1150. Nothing in this act contained shall be construed
to interfere with the work of improvement in or along the
said river and harbor, under the supervision of the United
States Government. Sec. h ibid.
HISTORICAL NOTE. — Legislative provision for the services of engineer officers with
the Revolutionary armies was made at a relatively early stage in the progress of the
war by a resolution of Congress of June 16, 1775, which authorized the employment
of engineer officers at the headquarters of the Army and in the several departments.
Col. R. Gridley was appointed Chief Engineer by General Washington, and his serv-
ices were recognized and continued in that capacity by a resolution of Congress dated
January 16, 1776. The difficulty of obtaining trained engineers in the Continental
establishment made it necessary to secure such services abroad, and the action of the
American commissioners in Paris, in employing several members of the French corps
of engineers, was approved by Congress in a resolution dated July 8, 1777. A corps
of engineers was subsequently established by the resolution of March 11, 1779, and
M. Duportail, an officer of the Royal Engineers of France, was placed at its head,
with the rank of brigadier-general. This corps continued in service until the close
of the war, not having been disbanded until November, 1783.
A Corps of Artillerists and Engineers was established by the act of May 9, 1784
(1 Stat. L., 366). This organization was required to be "completed" by the act of
March 3, 1795 (ibid., 430), and an additional regiment of artillerists and engineers
was added to the establishment by the actof April 27, 1798 (ibid., 552). The seven-
teenth and eighteenth sections of the act of March 3, 1799 (ibid., 755), passed in con-
templation of war with France, authorized the appointment of two engineers ' ' distinct
from the corps of artillerists and engineers," with the rank and pay of lieutenant-
colonels, and conferred power upon the President, in his discretion, to. appoint an
inspector of fortifications, who was to have the rank of major and was to be selected
from the artillerists and engineers, or from civil life. If he was appointed from the
existing corps he was to retain his office and was to rise ' ' therein in the same man-
ner as if he had never been appointed to the said office of inspector."
The functions of the artillerists and engineers were dissociated by the act of
March 6, 1802 (2 ibid., 132), which created a regiment of artillery and authorized
the President to organize and establish a Corps of Engineers to consist of one major,
two captains, two first lieutenants, two second lieutenants, and ten cadets; provision
was made in the same enactment for the gradual expansion of the corps by a clause
conferring authority upon the President to make promotions ' ' without regard to
rank" until the corps should consist of one colonel, one lieutenant-colonel, two
majors, four captains, four first lieutenants, and four second lieutenants. By the act
of April 29, 1812 (2 ibid., 720), two captains, two first lieutenants, two second
lieutenants, "to be taken from the subaltern officer of engineers," and one paymaster
and a company of bombardiers, sappers, and miners were added to the existing
establishment. The composition of this corps was not changed by the acts of
March 3, 1815 (3 ibid., 224), and April 4, 1818 (ibid., 426), for the reduction and
reorganization of the staff, nor was its organization modified at the general reduction
of March 2, 1821 (ibid., 615).
By section 2 of the act of July 5, 1838 (5 Stat. L., 256), a Corps of Topographical
Engineers was established, and the President was authorized to increase the Corps of
Engineers by the addition of one lieutenant-colonel, two majors, six captains, six first
lieutenants, and six second lieutenants, and the pay of engineer officers was fixed at
438 MILITARY LAWS OF THE UNITED STATES.
the rates established by law for officers of dragoons. By section 3 of the act of July
5, 1838, the paymaster authorized by the act of April 12, 1808, was transferred to the
Pay Department. A second company of engineer soldiers was adcfed to the corps
by section 4 of the act of May 15 1846 (9 ibid., 12). By the act of March 3, 1851
(ibid., 62), the President was authorized to employ officers of engineers on light-
house duty, and by sections of the act of August 31, 1852 (10 ibid., 119), officers of
the corps were required to be attached to the Light-House Board as member and
engineer secretary, respectively. By section 9 of the act of March 3, 1853 ( ibid. , 119),
lieutenants of engineers, after fourteen years' continuous service, were to be entitled
to the pay and allowances of captains. By section 3 of the act of August 5, 1861
(12 ibid., 287), three first lieutenants and three second lieutenants were added, and
the organization of three additional companies of engineer soldiers was authorized by
the act of August 6, 1861 (ibid., 317); two lieutenant-colonels and four majors were
added to the" strength of the corps, "by regular promotion." The Corps of Topo-
graphical Engineers was discontinued by the act of March 3, 1863 (ibid., 743), and
its officers were merged in the Corps of Engineers. Examinations were also required,
in all grades below that of field officer, as a condition precedent to promotion. The
composition of the corps was fixed, by the same enactment, at one brigadier-general,
four colonels, ten lieutenant-colonels, twenty majors, thirty captains, thirty first lieu-
tenants, and ten second lieutenants. By section 19 of the act of July 28, 1866 (4
ibid., 333), the strength of the corps was fixed at one brigadier-general, six colonels,
twelve lieutenant-colonels, twenty -four majors, thirty captains, twenty -six first lieu-
tenants, and ten second lieutenants. By section 6, of the act of March 3, 1869
(15 ibid., 31 8), appointments and promotions in the several departments of the staff
were suspended until otherwise directed by Congress. This requirement was removed,
however, as to all officers below the grade of brigadier-general by the act of June 10,
1872 (17 ibid., 382), and repealed as to the Chief of Engineers by the act of June
30, 1879 (21 ibid., 45). By the act of July 5, 1898 (30 ibid., 652), the strength of
the Corps of Engineers was fixed at one brigadier-general, seven colonels, fourteen
lieutenant colonels, twenty-eight majors, thirty-five captains, thirty first lieutenants,
and twelve second lieutenants.
By section 22 of the act of February 2, 1901 (31 Stat. L., 754), the permanent strength
of the department was fixed at one Chief of Engineers with the rank of brigadier-
general, seven colonels, fourteen lieutenant-colonels, twenty-eight majors, forty cap-
tains, forty first lieutenants, and thirty second lieutenants. The enlisted force was
also increased by the addition of two battalions of engineer troops. It was also pro-
vided that the troops of the three engineer battalions and the officers of Engineers
assigned to duty therewith should constitute a part of the line of the Army.
THE CORPS OF TOPOGRAPHICAL ENGINEERS.
The act of March 3, 1813 (2 Stat. L., 819), authorized the appointment of eight
topographical engineers with the rank of major of cavalry and eight assistants with
the rank of captain of infantry; but this force was reduced to two majors by the act
of March 3, 1815 (ibid., 224). By the act of April 24, 1816 (ibid., 297), three majors
and two assistants with the rank of captain were authorized for each division of the
Army. On July 2, 1818, these officers were merged, by general orders, in the Corps
of Engineers. In August, 1818, a topographical bureau was established in the War
Department, the duties of the bureau being performed by officers detailed from the
line. By the act of April 30, 1824 (4 ibid., 22), civil assistants were authorized to be
employed, and on June 21, 1831, the Topographical Bureau was formally constituted,
in general orders, as a separate office of the War Department.
The Corps of Topographical Engineers eo nomine was established by section 4 of
the act of July 5, 1838 (5 Stat. L., 256), to consist of one colonel, one lieutenant-
colonel, four majors, ten captains, ten first lieutenants, and ten second lieutenants,
who were to be appointed by selection from the Corps of Engineers, from the line of
the Army, and from the civil engineers authorized by the act of April 30, 1824. The
corps as thus constituted was increased by section 2 of the act of August 5, 1861 (12
ibid., 287), by the addition of three first lieutenants and three second lieutenants,
and, by the act of August 6, 1861 (ibid., 317), by the addition of two lieutenant-
colonels, four majors, and one company of engineer soldiers. The corps was discon-
tinued by the act of March 3, 1863 (9 Stat. L., 743), its officers being merged in the
Corps of Engineers.
CHAPTER XXIII.
THE ORDNANCE DEPARTMENT l— THE BOARD OF ORD-
NANCE AND FORTIFICATION, ARMS, ARMORIES, AND
ARSENALS.
Par.
1151. Organization.
1152, 1153. Appointments, promotions,
examinations.
1154-1156. Details.
1157-1161. Miscellaneous requirements.
1162-1165. Ordnance sergeants, enlisted
men.
1166-1168. Duties.
1169-1171. Purchases.
1172-1176. Accountability for property;
regulations.
Par.
1177-1181. Sales.
1182-1184. Loans, gratuitous issues.
1185-1188. Board for testing rifled can-
non.
1189. Miscellaneous purchases.
1190-1204. Arms, armories and arsenals.
1205-1208. The United States testing ma-
chine.
1209-1217. The Board of Ordnance and
Fortification.
ORGANIZATION.
1151. The Ordnance Department shall consist of one
Chief of Ordnance with the rank of brigadier-general,
four colonels, six lieutenant-colonels, twelve majors,
twenty -four captains, and twentj^-four first lieutenants,
the ordnance storekeeper, and the enlisted men, including
ordnance-sergeants, as now authorized by law. All va-
cancies created or caused by this section shall, as far as
possible, be filled by promotion according to seniority as
now prescribed by law. Sec. 23, act of February 2, 1901
(31 Stat. L., 754).
>|2ne
23 1374
F 1901 s
23> v- 81> p- 764-
PROMOTIONS — EXAMINATIONS FOR PROMOTION.
1152. No * * * promotion in said department shall
hereafter be made until the oflicer or person so * * * s- 6> v- 18>P- 245<
promoted shall have passed a satisfactor}^ examination
1 For note containing a statutory history of the Ordnance Department see end of
chapter.
439
440 MILITARY LAWS OF THE UNITED STATES.
before a board of ordnance officers senior to himself.1
Sec. 5, act of June 23, 187 % (18 Stat. Z., £05); act of
February 0, 1901 (31 ibid., 75 Jf).
Feb^^Soi', s. 1153. So long as there remain any officers holding per-
26, v. 31, p. 755. manent appointment in the * * Ordnance Depart-
ment * * * they shall be promoted according to
seniority in the several grades, as now provided by law,
and nothing herein contained shall be deemed to apply to
vacancies which can be filled by such promotions or to the
periods for which officers so promoted shall hold their
appointments.2 Sec. 26, act of February 2, 1901 (31 Stat.
£., 755).
DETAILS.
/Ma08" 1154. When any vacancy, except that of the chief of the
department or corps, shall occur, which can not be filled
by promotion as provided for in this section, it shall be
filled by detail from the line of the Army. Hid.
howmade8ame; 1155. Such details shall be made from the grade in which
the vacancies exist, under such system of examination as
the President may from time to time prescribe.3 Ibid.
terhe same; 115g ^ officers so detailed shall serve for a period of
four years, at the end of which time they shall return to
duty with the line, and officers below the rank of lieutenant-
colonel shall not again be eligible for selection in any staff
department until they have served two years with the line.
Hid.
MISCELLANEOUS REQUIREMENTS.
1157- The Principal assistant in the Ordnance Bureau
°f Ord" shall receive a compensation, including pay and emolu-
i9Fpb243>1877>v'men^s> n°t exceeding that of a major of ordnance.
Rank of' ord- 1158. The ordnance storekeeper at Springfield armory
nance store- . J
keepers. shall have the rank of ma] or of cavalry, and the ordnance
1 The system of examinations above prescribed now applies to such officers only as
held commissions in the department on February 2, 1901; vacancies which may
hereafter occur are required to be filled in accordance with the system of details
prescribed in section 26 of the act of February 2, 1901 .. See, in this connection, the
title Details to the Staff in the chapter entitled THE STAFF DEPARTMENTS.
Examinations for promotions in this department are now regulated by the acts of
June 23, 1874 (18 Stat. L., 245), October 1, 1890 (26 ibid., 562), and July 27, 1892 (27
ibid., 276).
Vacancies in the lowest grade in the Ordnance Department are filled by the
appointment of officers from the line of the Army who have passed a satisfactory
examination of the kind prescribed in this section. The conditions of appointment
and examination are set forth in paragraphs 1489 and 1490 of the Army Regulations
of 1895.
2 For enactment authorizing the promotion of lieutenants of ordnance to the grade
of captain after fourteen years' service see paragraph 957, ante; for requirements in
rsspect to examinations for promotion see the chapter entitled THE STAFF DEPART-
MENTS.
8 For statutory regulations respecting details in the several staff departments see
the title Details to the Staff in the chapter entitled THE STAFF DEPARTMENT.
MILITARY LAWS OF THE UNITED STATES.
441
storekeeper now on duty in Washington as disbursing offi- 145f
cer and assistant to the Chief of Ordnance, United States ^
Army, shall hereafter have the rank of major. All other ^7|
ordnance storekeepers shall have the rank of captain of j^ 68>i8%24v:
BS
cavalry. Act of June 6, 1896 (89 Stat. L. , 260. ) l 2 Vc.nso, K.S.
1159. Any number, not exceeding six, of the ordnance
storekeepers maybe authorized to act as paymasters
armories and arsenals.2
1160. When a vacancy shall occur through death, retire- ke°^cre dl
ment, or other separation from active service, in the office ti jj-^f^ 1899 v
of storekeeper in the Quartermaster's Department an
Ordnance Department, respectively, now provided for by
law, said offices shall cease to exist. Act of March 2,
1899 (30 Stat. L., 977). February 8, 1901 (31 ibid., 748.)
1161. A chief ordnance officer may be assigned to the staff
of an army or a corps commander, and while so assigned vij^ns'7
shall have the rank, pay, and allowance of a lieutenant- ^ P- 72°-
colonel. A chief ordnance officer may be assigned to the
staff of a division commander, and while so assigned shall
have the rank, pay, and allowances of a major. Act of
July 7, 1898 (30 Stat. Z.,
g andndi-
ORDNANCE-SERGEANTS — ENLISTED MEN.
Par.
1162. Ordnance-sergeants, duties.
1163. The same, selection.
Par.
1164. Enlisted men of ordnance.
1165. Detail of artificers.
1162. There shall be an ordnance-sergeant for each mili- gean^-a number
tary post, whose duty it shall be to take care of the ord- ^fy^J 'isee c
nance, arms, ammunition, and other military stores at such |jg: ^"5* lfy$
post, under the direction of the commanding officer, and ^467' s- 2» v- 4> p-
according to regulations prescribed by the Secretary of Sec.ii09,R.s.
War.3
1163. Ordnance-sergeants shall be selected by the Sec- Jow ^gted.
retary of War from the sergeants of the line who shall f^V'is???^!
have served faithfully for eight years, including four years 19)sJc.2iiio K.S.
1See the title Examinations for Promotion in the chapter entitled THE STAFF
DEPARTMENTS.
2 But one of these officers now remains in service; the office will cease to exist upon
the occurrence of a vacancy under the operation of the act of Feb. 2, 1901. See par.
1160, post.
3 For pay and allowances of ordnance-sergeants, see the chapters entitled THE PAY
DEPARTMENT, THE QUARTERMASTER'S DEPARTMENT, and THE SUBSISTENCE DEPARTMENT.
The Army appropriation act of June 16, 1892, provided "that sergeants of ord-
nance shall receive the same allowances of clothing as other sergeants in like staff
departments." Held that this provision entitled these sergeants to receive, free of
cost, a certain number of units of the different articles that go to make up their cloth-
ing, or, when the allowance was expressed in dollars and cents, the amount which
such articles would cost when made up in the form and style required for such ser-
geants. Dig. Opin. J. A. G., par. 1864.
442 MILITARY LAWS OF THE UNITED STATES.
in the grade of noncommissioned officer, and shall be
assigned to their stations by him.
n H64. The Chief of Ordnance may enlist as many sergeants
8:°^ or(^nance' corP°ra^s °f ordnance, and first and t second
Ju^y5,i862,'c.i33,' class privates of ordnance as the Secretary of War may
juiyV28, 1866 c! direct.
335'; JuneS.l&S; C. 458, s. 5, v. 18, p. 245; Feb.
Sec. 1162, B.S. 27, 1877, c. 69, v. 19, p. 242.
Detail of artifi- 1165. The Chief of Ordnance, subject to the approval of
Feb. 8, 1815, c. the Secretary of War, shall organize and detail to reei-
38,s.r4,v.3,J).203; *
Feb. 27,1877, c.69,ments, corps, or garrisons such numbers of ordnance
'sec. lies,' B.S. enlisted men, furnished with proper tools, carriages, and
apparatus, as may be necessary, and shall make regula-
tions for their government.
Par.
1166. Duties of Chief of Ordnance.
DUTIES.
Par.
1168. Depots
1167. Issues.
0f]oidnSaSfcehief 1166> ^ s^a^ be ^6 ^u^r °* ^e Chief of Ordnance to
38Fse8'v'3181^k)3' furnis^ estimates, and, under the direction of the Secretary
s'«c. ii64, B. s. Of \\rar? to make contracts and purchases, for procuring
the necessary supplies of ordnance and ordnance stores for
the use of the armies of the United States; to direct the
inspection and proving of the same, and to direct the con-
struction of all cannon and carriages, ammunition wagons,
traveling forges, artificers' wagons, and of every imple-
ment and apparatus for ordnance, and the preparation of
all kinds of ammunition and ordnance stores constructed
or prepared for said service.1
i5be8 isis c 1167- The Cllief of Ordnance, or the senior officer of that
°|- corps for any district, shall execute all orders of the Secre-
tary of War, and, in time of war, the orders of any general
or field officer commanding an army, garrison, or detach-
ment, for the supply of all ordnance and ordnance stores
for garrison, field, or siege service.
geP°Jf-1s1, „ 1168. The Chief of Ordnance, under the direction of the
J-6D. o, loJu, C.
8^.9ii65 PB?S.' Secretary of War, may establish depots of ordnance and
ordnance stores in such parts of the United States and in
such numbers as may be deemed necessary.2
1 For powers and duties of this office in respect to the care and accountability of
ordnance and ordnance stores, see paragraphs 1172-1176 post.
2 CLERICAL SERVICES.
The employment of clerical services in the Ordnance Department is regulated in
the annual acts of appropriation. The amount to be expended for such services
was fixed at $65,000 by the acts of March 3, 1883, July 5, 1884, and March 3, 1885; at
Par.
MILITARY LAWS OF THE UNITED STATES. 443
PURCHASES.
Par.
1171. Material for cartridge bags.
1169. General purchases.
1170. Purchases of steel.
1169. Hereafter, except in cases of emergency or where ch^Jgeral pur"
it is impracticable to secure competition, the purchase of g^^f' 1901> v<
all supplies for the use of the various departments and
posts of the Arm}7' and of the branches of the army serv-
ice shall only be made after advertisement, and shall be
purchased where the same can be purchased the cheapest,
quality and cost of transportation and the interests of the
Government considered; but every open-market emer-
gency purchase made in the manner common among
business men which exceeds in amount two hundred dol-
lars shall be reported for approval to the Secretary of War
under such regulations as he may prescribe.1 Act of
March 3, 1901 (31 Stat. Z., 905).
1170. No contract for the expenditure of any portion of st(fe"rchases of
the money herein provided, or that may be hereafter MF®b-7|*'1891'v-
provided for the purchase of steel shall be made until the
same shall have been submitted to public competition by
the Department by advertisement. Act of February %4>
1891Z (26 Stat. Z., 769).
1171. When, in the opinion of the Secretaiy of War, it
is necessary to purchase material abroad for the manufac-
ture of sacks for artillery cartridges, it shall be admitted
free of duty. Act of March 15, 1898 (30 Stat. Z., 326).
$60,000 by the acts of June 30, 1886, February 9, 1887, September 22, 1888, March 2,
1889, June 13, 1890, February 24, 1891, July 16, 1892, February 27, 1893, August 6, 1894,
February 12, 1895, March 16, 1896, March 2, 1897, and March 15, 1898. This restric-
tion is suspended, during the existing war with Spain, by the act of June 7, 1898 (30
Stat. L., 434), and subsequent enactments of similar character.
^his enactment replaces the act of August 6, 1891 (28 Stat. L., 242), authorizing
open-market purchases, not exceeding two hundred dollars in amount, in the man-
ner common among business men. For general provisions respecting the procure-
ment of supplies and services, see the chapters entitled CONTRACTS AND PURCHASES.
The act of June 7, 1898 (30 Stat. L., 434), contained the requirement that "during
the existing war the Bureau of Ordnance of the War Department is authorized to
purchase without advertisement such ordnance and ordnance stores as are needed
for immediate use, and when such ordnance and ordnance stores are to be manufac-
tured then to make contracts without advertisement for such stores to be delivered
as rapidly as manufactured." By section 3 of the act of February 24, 1900 (31 Stat.
L. 33) , this authority was extended to June 30, 1901.
2The act of May 7, 1898 (30 Stat. L., 401), contains the requirement "thatno con-
tract for oil-tempered and annealed steel for high-power coast-defense guns and mor-
tars shall be made at a price exceeding twenty-three cents per pound." The same
statute confers authority upon the Secretary of War, at his discretion, to expend a
portion of the money appropriated for oil-tempered and annealed steel for the pur-
chase of material for steel-wire seacoast guns. The acts of March 3, 1899 (30 Stat.
L., 1251), and May 25, 1900 (31 ibid., 184), contain similar requirements; those of
March 3, 1899, and May 25, 1900, restricted the price to be paid for steel to twenty-two
cents per pound.
444 MILITARY LAWS OF THE UNITED STATES.
ACCOUNTABILITY FOR PROPERTY.
Par.
1172. Reports of stores.
1173. Returns of ordnance.
1174. Regulations.
Par.
1175. Reports of damages.
1176. Cost of repairs.
semiannual re- 1172. The Chief of Ordnance shall, half yearly, or of tener
Feb. s, 1815, c. if so directed, make a report to the Secretary of War of
Febl 27,1877, c. 69,' all the officers and enlisted men in his department of the
V. 19, p. 242.
Sec. 1167, K.S. service, and of all ordnance and ordnance stores under his
control.
n^eturnsoford- 1173, Every officer of the Ordnance Department, every
i9Feb2427> 1877> v' 01*dnance storekeeper, every post ordnance-sergeant, each
sec. ii67,K.s. keeper of magazines, arsenals, and armories, every assistant
and deputy of such, and all other officers, agents, or persons
who shall have received or may be entrusted with any
stores or supplies, shall quarterly, oroftener if so directed,
and in such manner and on such forms as m&y be directed
or prescribed by the Chief of Ordnance, make true and
correct returns to the Chief of Ordnance of all ordnance
arms, ordnance stores, and all other supplies and property
of every kind received by or entrusted to them and each of
them, or which may in any manner come into their and
each of their possession or charge. Act of February 27 ,
1877 (19 Stat. L.,242).
re?umsationsf°r 1174< Tne ^nief of Ordhance, subject to the approval of
Secdii67 R s ^ne Secretary of War, is herebj7 authorized and directed
to draw up and enforce in his department a system of
• rules and regulations for the government of the Ordnance
Department, and of all persons in said department, and
for the safe-keeping and preservation of all ordnance
property of every kind, and to direct and prescribe the
time, number, and forms of all returns and reports, and
to enforce compliance therewith.1 Ibid.
1 For statutory provisions on the subject of property returns, see the act of March
29, 1894 (28 Stat. L., 42) ; see also the chapter entitled THE PUBLIC PROPERTY.
It is required, in general and comprehensive terms by section 1167, Revised Stat-
utes, that all officers, persons, etc., who may be entrusted with any ordnance stores or
supplies shall make certain regular returns to the Chief of Ordnance of such prop-
erty in their possession or charge, according to certain forms and regulations to be
prescribed by that officer with the approval of the Secretary of War. The act of
March 3, 1879, authorizes and directs the Secretary of War, at the request of the head
of any department, to issue arms and ammunition, when required for the protection
of the public money and property, "to be delivered to any officer" of such depart-
ment as may be designated by the head of the same, and to be accounted for to the
Secretary of War. Held that the provision of section 1167 might properly be regarded
as applying to the class of officers indicated in this act, who therefore would prop-
erly be required to furnish the returns prescribed by that section. Dig. Opin. J. A.
G., par. 1861.
MILITARY LAWS OF THE UNITED STATES.
445
1175. Every officer commanding a regiment, corps, gar-da^|°grts oi
rison, or detachment shall make, once every two months, ss^'
or oftener if so directed, a report to the Chief of Ordnance Sec-
stating all damages to arms, equipments, and implements
belonging to his command, noting those occasioned by
negligence or abuse, and naming the officer or soldier
by whose negligence or abuse the said damages were
occasioned.
1176. The cost of repairs or damages done to arms, equip- toCojt ^
ments, or implements shall be deducted from the pay of ce°
any officer or soldier in whose care or use the same were Sec- i808,B.s.
when such damages occurred, if said damages were occa-
sioned by the abuse or negligence of said officer or soldier.
SALES OF OBSOLETE AND UNSERVICEABLE MATERIAL.
Par.
1180. Sales to States, credits.
1181. Restriction on payment of freight.
Par.
1177. Sale of powder and shot.
1178. Sale of useless ordnance.
1179. Issues to States, credits.
1177. The Secretary of War is hereby authorized, in
his discretion, to exchange the unserviceable and unsuit- j£J| p°wder and
able powder and shot on hand for new powder and pro- 21Ma4^' 1881> T'
jectiles, or to sell the same and purchase similar articles
with the proceeds of the sales ; and he shall make statement
of his action under this provision in his next annual
report. Act of March 3, 1881 (21 Stat. Z., 468).
1178. The Secretary of the Na.vy is authorized to dis-
pose of the useless ordnance material on hand at public
sale according to law. * * * And in the case of the
sale of like materials in the War Department, the proceeds
of which shall be turned into the Treasury, an amount 18> P- m
equal to the net proceeds of such sale is hereby appro-
priated for the purpose of procuring a supply of material
adapted in manufacture and caliber to the present wants
of the war service: And there shall be expended in the
War Department, under this provision, not more than
seventy-five thousand dollars in any one year.1 Act of
March 3, 1875 (18 Stat. L., 388).
1179. Hereafter the cost to the Ordnance Department of crggjf tostate8(
all ordnance and ordnance stores issued to the States, of;MaroQo' 1889> T'
" 25, p. ooo.
Territories, and District of Columbia, under the act of
1 For rules respecting the disposition of damaged stores or stores that are unsuit-
able for the public service, see the chapter entitled THE PUBLIC PROPERTY; for rules
as to the disposition of the proceeds of the sale of condemned property, see the chap-
ter entitled THE TREASURY DEPARTMENT.
446 MILITARY LAWS OF THE UNITED STATES.
February twelfth, eighteen hundred and eighty-seven,
shall be credited to the appropriation for ' ' manufacture
of arms at national armories," and used to procure like
ordnance stores, and that said appropriation shall be avail-
able until exhausted, not exceeding two years. l Act of
March 2, 1889 (25 Stat. Z., 833).
proSdfState8' 1180' Tlie cost of a11 stores and supplies sold to any
30Mar326 ' 1898> v' State or Territory under section three of the act approved
February twenty-fourth, eighteen hundred and ninety -
seven, shall be credited to the appropriation from which
they were procured, and remain available to procure like
stores and supplies for the Army in lieu of those sold as
aforesaid. Act of March 15, 1898 (30 Stat. Z., 326).
pa^mlfnt11 o"f H81. No part of the appropriations made for the Ord-
MarS 1901 v. nance Department shall be used in payment of freight
si, p. 910. charges on ordnance or ordnance stores issued by said
department. Act of March 2, 1901 (31 Stat. Z., 910)
LOANS AND GRATUITOUS ISSUES.
of^oSdemSed 1182- Tiie Secretary of War and the Secretary of the
authorized et°''^av3r are eac^ nereDy authorized, in their discretion, to
29*payi33' 18%' v' l°an or £iye t° soldiers' monument associations, posts of the
Grand Army of the Republic, and municipal corporations
condemned ordnance, guns, and cannon balls which may
not be needed in the service of either of said Departments.
Such loan or gift shall be made subject to rules and regu-
lations covering the same in each Department, and the
Government shall be at no expense in connection with any
such loan or gift. Act of May 22, 1896 (29 Stat. Z., 133).
National Hom? H83. The Chief of Ordnance is authorized to issue such
3oMario87318"' v' °bsolete ordnance, gun carriages, and ordnance stores, as
may be needed for ornamental purposes, to the Homes for
Disabled Volunteer Soldiers, the Homes to pay for trans-
portation and such other expenses as are necessary.2 Act
of March 3, 1899 (30 Stat. Z., 1073).
AMMUNITION FOR MORNING AND EVENING GUN.
1184. For firing the morning and evening gun at military
^ posts prescribed by General Orders, Numbered Seventy,
si, p. 216. Headquarters of the Army, dated July twenty -third, eight-
een hundred and sixty-seven, and at National Home for
lrThe act of March 15, 1898 (30 Stat. L., 326), contains a similar requirement.
2 For similar loans, gifts, and issues of ordnance to National Military Park, see the
chapter entitled NATIONAL PARKS. For issues to colleges, see the title Details to Col-
leges in th chapter entitled COMMISSIONED OFFICERS.
v.
MILITARY LAWS OF THE UNITED STATES.
447
Disabled Volunteer Soldiers and its several Branches,
including National Soldiers' Home in Washington, District
of Columbia, and at Soldiers and Sailors' State Homes,
including material for cartridges, bags, and so forth,
twenty-five thousand dollars.1 Act of May 26, 1900(31
Stat. X., 216).
BOARD FOR TESTING RIFLED CANNON.
Par.
1188. Expenses of officers at proving
grounds.
Par.
1185. Public tests.
1186. Calibers, weights, lengths of bore,
etc., to be furnished to makers.
1187. Sales of s. b. guns for experimental
purposes.
1185. That hereafter all rifled cannon of any particular
material, caliber, or kind, made at the cost of the United etc^ly 5 1884
States, shall he publicly subjected to the proper test, 2> v- ^ p- 169-
including such rapid firing as a like gun would be likely
to be subjected to in actual battle, for the determination
of the endurance of the same to the satisfaction of the
President of the United States or such persons as he may
select; and he is hereby authorized to select not to exceed
five persons, who shall be skilled in such matters; and if
such gun shall not prove satisfactory, they shall not be
put to use in the Government service. Sec. 8, act of July
5, 1884(23 Stat. Z., 159).
1186. It shall be the duty of the Secretary of War to caiiber,etc.,of
., . .. . . ... guns required
cause tne various calibers, lengths 01 bore, greatest and for service to be
determined b y
least admissible weights of guns for each caliber, together secretary of
with the greatest and least weights of projectiles for each sec. i, ibid.
caliber, of all the various calibers required for the service,
together with the number of each caliber of gun required
to be determined, and to make the same known to manu-
facturers of ordnance on their application and to report
the same to Congress at its next session for its approval.
Sec. 1, ibid.
1187. That the Secretary of War and the Secretary of
the Navy are hereby authorized to sell to projectors
methods of conversion, for experimental purposes only , * *fy 5> lm
any smooth-bore cannon on hand required by them, at
prices which shall not be less than have been received from
auction sales for such articles, and deliver the same at the
cost of the Government, at the nearest convenient place for
1 The annual acts of appropriation since that of September 22, 1888 (25 Stat. L
488), have contained a similar provision.
448 MILITARY LAWS OF THE UNITED STATES.
shipment or public transportation; the cost of delivery to
be deducted from the proceeds of sales, and the balance to
be covered into the Treasury of the United States. Sec.
3, act of July 5, 1884 (23 Stat. Z., 169).
Expenses of 1188. For the necessary expenses of officers while tem-
° May25, i9oo, v. porarily employed on ordnance duties at the proving
ground and absent from their proper stations, at the rate
of two dollars and fifty cents per diem while so employed,
* * * dollars.1 Act of May %5, 1900(31 Stat. Z., 186.)
MISCELLANEOUS PURCHASES.
breech-ioad\n°| 1189< ^he Secretary of War is hereby authorized and
iare e^ailber8 au-^^rec^e(^ ^° Purc^ase under contract, after due advertise-
thsecZ62d'Au lg ment inviting proposals, and at prices which the Board
1890, v. 26, p. 319.' Of Ordnance and Fortification shall adjudge to be fair to
the manufacturer and for the interest of the United States,
twenty -five eight-inch, fifty ten-inch, and twenty -five
twelve-inch guns, all of which guns shall be breech-load-
ing single-charge steel guns, and of weight and dimensions
to be prescribed by the Board, and shall fulfill the condi-
tions hereinafter provided: Provided^ That if two or more
persons, citizens of the United States, submit proposals to
furnish said guns, either in part or in whole, at prices not
materially different from each other, contracts may be
awarded, in such proportion^ among the citizens submit-
ting such proposals as the Secretary of War may direct.
One type gun of each of the above-mentioned caliber, with
the proper supply of ammunition therefor, shall be pre-
sented for test at such place and within such time as the
contract shall provide, and shall be subjected to such tests
in respect to accuracy, range, power, endurance, and general
efficiency as the Board of Ordnance and Fortification shall
have prescribed. All the other guns of each caliber, with
the proper supply of ammunition, shall be delivered at such
place and within such times as the contract shall provide,
and shall be subjected to the ordinary service test of ten
rounds with the full charge and weight of projectile, which
shall develop the standard power prescribed for the gun.
If the type gun sustains the prescribed test to the satisfac-
tion of the Board of Ordnance and Fortification, it and
each of the other guns which sustains the ordinary service
1 This provision has appeared in the several acts of appropriation for fortifications,
etc., since that of February 24, 1891 (26 Stat, L., 768). See note to paragraph 1217,
post.
MILITARY LAWS OF THE UNITED STATES. 449
test, and the ammunition expended in such tests, shall be
accepted under the contract. All guns manufactured
under these contracts, including the type guns, shall be
subjected to inspection at all stages of manufacture, and
no change whatever shall be made in the material, mode
of manufacture, or dimensions of the guns for service from
those employed in the type gun without the approval of
the Secretary of War. Payment for each gun and ammu-
nition for testing same, including cost of transportation,
shall be made upon the satisfactory completion of the pre-
scribed test for that gun. All tests of guns shall be made
in the presence of the Board and of the person presenting
the gun, or his authorized agent, and due regard shall be
paid to suggestions offered by him which respect the
mode of making such test.
Under the provisions of this sections there shall not
be expended or contract or contracts entered involving the
Government in an aggregate expenditure exceeding three
million seven hundred and seventy-five thousand dollars,
nor an expenditure on the part of the Government in any
one fiscal year in excess of one million dollars. And all
guns and materials purchased under the authority of this
section shall be of American manufacture and furnished
by citizens of the United States: Provided further, That
contracts may be made for not exceeding one-fourth of the Maximum Pa-
, . , , „ , ciflc coast con-
guns herein provided for, to be constructed on the Pacific tracts.
coast, in the discretion of the Secretary of War. Sec. 2,
act of August 18, 1890 (26 Stat. Z., 319).
Section two of "An act making appropriations for for- The same; limit
. of expenditure.
tmcations and other works of defense, for the armament 26Feb^}' 1891> Vt
thereof, for the procurement of heavy ordnance for trial
and service, and for other purposes," approved August
eighteenth, eighteen hundred and ninety, is hereby modi-
fied and enlarged so that the amount authorized to be
expended thereunder be increased to four million two hun-
dred and fifty thousand dollars, to be expended on the terms
and conditions and for the purposes therein set forth, except
that fifty thousand of said sum shall be reserved to cover
all expenses other than the powder and projectiles incident
to the tests and inspection of the guns, and also that the
Secretary of War be authorized to contract thereunder for
such less number of guns than one hundred as he may ni2neberoef heavy
deem for the best interests of the Government. Act 0
February % 1891 (26 Stat. L., 770).
22924—08 29
450 MILITARY LAWS OF THE UNITED STATES.
ARMS, ARMORIES, AND ARSENALS.
Par.
1190. Armories, officers, workmen.
Par.
1199. Exemption from service as jurors.
1191. Pay of officers, clerks, etc. , at armo- | 1200. No money to be expended in per-
ries, fecting inventions.
1192. When paid; who to give bond.
1193. Annual accounts to Congress.
1194. Arsenals may be abolished.
1195. Distribution of arms to States, etc.
1196. Leaves of absence to employees.
1197. Enticing away workmen; penalty.
1198. Workmen guilty of certain miscon-
duct.
1201. Patents for inventions.
1202. Magazine arms.
1203. Replacing ordnance, etc.
1204. Issues of arms, etc., to Executive
Departments.
1190> At eac^ arsenal there shall be established a national
v.'i!p9352:,armory' in which there shall be employed one superintend-
K?s'2^v 21pl849o:en^ W^° shall be an officer of the Ordnance Department,
26?gs i' v8io p' t° t>e designated by the President; one master-armorer,
be appointed by the President, and as many
31|ec. lees, R. s. workmen as the Secretary of War may, from time to time,
deem necessary.
ci?rkysftcffiacte5- 1191- The ordnance officer in charge of any national ar-
mAugS23 1842 c mory shall receive no compensation other than his regular
MirS'32i^57'c'io6;Pav as an officer of the corps; the master-armorers shall
AugVe i86ip'c257; receiye fifteen hundred dollars per annum each; the inspect-
Mai-V2!^1^ ors an(^ c^erks, each, eight hundred dollars per annum,
467>june2^i874'exceP^ the clerks of the armory at Springfield, Massachu-
vs18cpi663,R.s. setts, who shall receive sixteen hundred and fifty dollars
per annum.
whoeito ^ve H92. The several compensations fixed by the preceding
b°Aug 23 1842 c se°tion for master-armorers and inspectors shall be paid
^eS^iew'Sr!1!' quarter-yearly. All military storekeepers and paymasters
shall give bond and security for the faithful discharge of
their duties, in such sum as may be prescribed by the
Secretary of War.
count? uto] con- H93. An annual account of the expenses of the national
2 1794 c armories shall be laid before Congress, together with an
weViMs' account of the arms made and repaired therein.
1194< ^e Secretary of War is authorized to abolish such
98^1 v H?3' c> °^ ^e arsenals of the United States as, in his judgment,
useless or unnecessary.
1^5. All the arms procured in virtue of any appropri-
etl r 23 1808 c ati°n authorized by law for the purpose of providing arms
Mar tl856Pc'i69:an(^ e'luipments for the whole body of the militia of the
s'&ee.i°6fe'?£'s. ^^n^ted States shall be annually distributed to the several
States of the Union according to the number of their Rep-
resentatives and Senators in Congress, respectively; and
MILITARY LAWS OF THE UNITED STATES. 451
all arms for the Territories and for the District of Columbia
shall be annually distributed in such quantities, and under
such regulations, as the President may prescribe. All such
arms are to be transmitted to the several States and Terri-
tories by the United States.
LEAVES OF ABSENCE TO EMPLOYEES.
1196. Each and every employee of the navy -yards, gun se^vtoSemPioy-
f actories, naval stations, and arsenals of the United States ee|,-eb 1 1901 v
Government be, and is hereby, granted fifteen working 31> P- ™-
days' leave of absence each year without forfeiture of pay
during such leave: Provided, That it shall be lawful to
allow pro rata leave only to those serving twelve consecu-
tive months or more: And provided further, That in all
cases the heads of divisions shall have discretion as to the
time when the leave can best be allowed without detriment
to the service, and that absence on account of sickness
shall be deducted from the leave hereby granted. Act of
February 1, 1901 (31 Stat. Z., 746).
MISCELLANEOUS PROVISIONS.
1197. If any person procures or entices any artificer DrWoS£eS?pS2
workman, retained or employed in any arsenal or armory, al*J^y 7 1800 c
to depart from the same during the continuance of his en-
gagement, or to avoid or break his contract with the United
States, or if any person, after due notice of the engagement
of any such workman or armorer, during the continuance
of such engagement, retains, hires, or in anywise employs,
harbors, or conceals such artificer or workman, he shall be
fined not more than fifty dollars, or be imprisoned not more
than three months.
1198. If any artificer or workman, hired, retained, or
employed in any public arsenal or armory, wantonly and
carelessly breaks, impairs, or destroys any implements, s
tools, or utensils, or any stock, or materials for making
guns, the property of the United States, or willfully and
obstinately refuses to perform the services lawfully assigned
to him, pursuant to his contract, he shall forfeit a sum not
exceeding twenty dollars for every such act of disobedience
or breach of contract, to be recovered in any court having
competent jurisdiction thereof.
1199. All artificers and workmen employed in the
ries and arsenals of the United States shall be exempted. JUMay 7, isoo, c.
during their time of service, from service as jurors in any Mar'^isss.'c^m
s. 7, v. 10, p. 639.
COUrt. Sic. 1671,B.S.
452 MILITARY LAWS OF THE UNITED STATES.
In 120°- Hereafter no money shall be expended at said armo-
8onsctinginven" ries in toe perfection of patentable inventions in the manu-
18^455' 1875' v ^acture of arms by officers of the Army otherwise com-
pensated for their services to the United States.1 Act of
March 3, 1875 (18 Stat. Z., 455).
ventSnSteftoribe 1201« The Secretary of the Interior and the Commis-
ice.6 pub~ si°ner °f Patents are authorized to grant any officer of the
1883> Government, except officers and employees of the Patent
Office, a patent for any invention of the classes mentioned
in section forty-eight hundred and eighty-six of the Revised
Statutes, when such invention is used or to be used in the
public service, without the payment of any fee: Provided,
That the applicant in his application shall state that the
invention described therein, if patented, may be used by
the Government or any of its officers or employees in the
prosecution of work for the Government, or by any other
person in the United States, without the payment to him
of any royalty thereon, which stipulation shall be included
in the patent.2 Act of March 3, 1883 (22 Stat. Z., 625).
MANUFACTURE OF ARMS.3
1202. Manufacture of arms at the National armories, four
28AU2426' 1894)V> hundred thousand dollars: Provided, That this appropria-
tion shall be applicable to the manufacture of the magazine
1 Where a skilled mechanic in the Government employment, in the ordinary course
of his employment, with the aids furnished by the Government and the suggestion
and advice of his superior officer, produces a device upon which a patent is issued,
he can not recover for its use by the Government. Eager v. U. S., 35 Ct. Cls.,
556; Solomon's Case, 21 ibid., 479; Gill's Case, 22 ibid., 335; 25 ibid., 415.
2 Where claimants seek to recover a royalty for the use of a patented device, they
must show a contract, express or implied. Where on a claim for royalty it appears
that the Government at no time recognized a right in the patentees or acknowledged
a responsibility, it must be held that no contract exists. Russell and Livermore v.
U. S., 35 Ct. Cls., 154. A contract to pay is implied whenever the Government,
acting through a competent agent, takes or uses individual property, acknowledging
explicitly or tacitly that the property is individual property. Schillinger v. U. S.,
24 Ct. Cls., 278; 155 U. S., 163; Berdan's Case, 25 Ct. Cls., 355; 26 ibid., 48; 30 ibid.,
491; 156 U. S., 552.
Section 1694 of the Revised Statutes contained the requirement that "no royalty
shall be paid by the United States to any of its officers or employees for the use of
any patent for the system, or any part thereof, mentioned in the preceding section
(section 1674, Revised Statutes), nor for any such patent in which said officers or
employees may be directly or indirectly interested."
3 By section 1673, Revised Statutes, it was provided that "the breech-loading sys-
tem for muskets and carbines adopted by the Secretary of War, known as ' the
Springfield breech-loading system,' is the only system to be used by the Ordnance
Department in the manufacture of muskets and carbines for the military service. ' '
Under authority conferred by the act of February 27, 1893 (27 Stat. L., 480), a sys-
tem of magazine small arms was adopted by the Secretary of War on the recom-
mendation of a board of officers convened for that purpose in pursuance of General
Orders, No. 136, A. G. O., of 1890; the magazine arm thus adopted is officially known
as the United States magazine rifle, model of 1896. The above requirement was
repeated in the acts of February 12, 1895 (28 Stat. L., 682), March 16, 1896 (29 ibid.,
68), March 2, 1897, (ibid., 617), and March 15, 1898 (dO ibid., 326).
MILITARY LAWS OF THE UNITED STATES.
453
arm recommended for trial by the board, recently in ses-
sion, and approved by the Secretary of War. Act of
August 6, 1894 (®$ Stat. Z., $1$).
1203. On application of the governor of any State
Territor}7 the Secretary of War is authorized to replace 30, priors!8"' v
the ordnance and ordnance stores which the volunteers
from said State or Territory carried into the service of
the United States Army during the recent war with Spain
and which have been retained by the United States. Act
of March 3, 1899 (30 Stat. Z., 1073).
ISSUES OF ARMS, ETC., TO EXECUTIVE DEPARTMENTS.
1204. Upon the request of the head of any Department,
the Secretary of War be, and he hereby is, authorized and payments.6 De
directed to issue arms and ammunition whenever they may 2oMPar4io .1879( v
be required for the protection of the public money and
property, and they may be delivered to any officer of the
Department designated by the head of such Department,
to be accounted for to the Secretary of War, and to be
returned when the necessity for their use has expired.
Arms and ammunition heretofore furnished to any Depart-
ment by the War Department, for which the War Depart-
ment has not been reimbursed, may be receipted for under
the provisions of this act. l Act of March 3, 1879 (W Stat.
Z., 1,10).
THE UNITED STATES TESTING MACHINE.
Par.
1205. The United States testing machine.
1206. No compensation for officers of the
United States.
1207. Tests to be made; use of machine.
Par.
1 208. Advance payments may be required
for tests; record of tests shall be
furnished to American Society of
Civil Engineers.
1205. For experiments in testing iron and steel, i»du4-
ing the cost of any machine built for such purpose, the
sum of fifty thousand dollars is hereby appropriated; and J£JJ .1 l
the further sum of twenty-five thousand dollars provided p- 543>
"for improved machinery and instruments for testing
American iron and steel" in the act entitled "An act mak-
ing appropriations for the support of the Army for the year
ending June thirtieth, eighteen hundred and seventy-four,"
approved March third, eighteen hundred and seventy-
three, is hereby continued and made available for such
1 Section 2 of the act of May 18, 1898 (30 Stat. L., 419) , authorized the Secretary of
War and general officers commanding troops in Cuba to make certain issues of arms,
ammunition, equipments, etc., to the Cuban people during the existence of the war
with Spain.
454 MILITAEY LAWS OF THE UNITED STATES.
purpose; and that the President be, and hereby is, author-
ized to appoint a board, to consist of one officer of the
Engineers of the United States Army, one officer of ord-
nance of the United States Army, one line officer of the
United States Navy, one engineer of the United States
Navy, and three civilians, who shall be experts; and it
shall be the duty of said board to convene at the earliest
practicable moment, at such place as may be designated
by the President, for the purpose of determining, by actual
tests, the strength and value of all kinds of iron, steel, and
other metals which may be submitted to them or by them
produced, and to prepare tables which will exhibit the
strength and value of said materials for constructive and
mechanical purposes, and to provide for the building of a
suitable machine for establishing such tests. Sec. 4, act of
March 3, 1875 (18 Stat. Z., 399).
ttoVSSoSfrf 1206- No officers in the pay of the Government shall be
states. U n * * e d entitled to, or receive, any additional compensation by rea-
iw. son of anv services rendered in connection with this board;
secretary. but one of the civil experts shall act as secretary of the
board, and shall be entitled, under this act, to such com-
pensation as the President may deem proper and fit: Pro-
vided, That not more than fifteen thousand dollars of the
sum herein provided shall be used for the expenses of such
board.1 Ibid.
an^S; ise°onf 1207- The Secretary of War is hereby authorized to
mj5iieie2o, 1878, cause tne machine built for testing iron and steel to be set up
v. 20, p. 223. an(j applied to the testing of iron and steel for all persons
who may desire to use it, upon the paj^ment of a suitable
fee for each test; the table of fees to be approved by the
Secretary of War, and to be so adjusted from time to time
as to defray the actual cost of the tests as near as may be.
Act of June 20, 1878 (20 Stat. Z., 223). That hereafter
the tests of iron and steel and other materials for indus-
trial purposes shall be continued, and report thereof shall
be made to Congress. Act of March 3, 1885 (23 Stat.
Z., 502).
Advance pay- 1208. In making tests for private citizens the officer
men ts may be re- . to r
quired. Record m charge may require payment in advance, and may use
of tests shall be & . , . , . .
furnished to the funds so received in making such private tests, mak-
ety of civil Engi- ing full report thereof to the Chief of Ordnance; and the
June so, 1882, v. Chief of Ordnance shall give attention to such programme
of tests as may be submitted by the American Society of
lfThe act of March 3, 1873 (17 Stat. L., 543), contained an appropriation of $25,000
for ''improved machinery and instruments for testing American iron and steel."
MILITARY LAWS OF THE UNITED STATES. 455
Civil Engineers, and the record of such tests shall be fur-
nished said societ}r to be by them published at their own
expense.1 Act of June SO, 1882 (22 Stat. L.,
THE BOARD OF ORDNANCE AND FORTIFICATION.
Par.
1214. No member to be interested in in-
vention, etc.
1215. Investigations.
1216. Right to use inventions.
1217. Per diem to officers.
Par.
1209. Organization; duties.
1210,1211. Additional members; artillery
officers.
1212. Expenditures.
1213. Additional civilian member.
1209. A board to consist of the commanding General of
the Army, an officer of Engineers, an officer of Ordnance,
and an officer of Artillery, to be selected by the Secretary 25- P- *^-
of War, to be called and known as the Board of Ordnance
and Fortification ; and said Board shall be under the direc-
tion of the Secretary of War and subject to his supervision
and control in all respects, and shall have power to pro-
vide suitable regulations for the inspection of guns and Duties.
materials at all stages of manufacture to the extent neces-
sary to protect fully the interests of the United States,
and generally to provide such regulations concerning mat-
ters within said Board's operations as shall be necessary
to carry out to the best advantage all duties committed to
its charge. Act of September 22, 1888 (25 Stat. Z., 489).
1210. One additional member shall be added to the said Additional
Board of Ordnance and Fortification, who shall be an Mar. i, 1901, v.
artillery officer of technical ability and experience, to be
selected by the Secretary of War. Act of March 1, 1901
(31 Stat. Z., 875).
1211. The Secretary of War is hereby authorized to Additional
appoint two additional members for the Board of Ord- Mar. 3/1901, v.
nance and Fortification, both of whom shall be selected
from the Artillery Corps. Act of March 3, 1901 (31 Stat.
L.,910).
1212. Subject to the foregoing provisions the expendi- Expenditures,
tures shall be made by the several bureaus of the Wai-
Department having jurisdiction of the same under exist-
ing law. Act of September 22, 1888 (25 Stat. Z., 489).
1213. One additional member shall be added to said Additional ci-
. . vilian member.
Board of Ordnance and Fortification who shall be a civil- Feb. 24, i89i, v.
ian and not an exofficer of the Regular Army or Navy,
and he shall be nominated by the President, and, by and
with the advice and consent of the Senate, appointed, and
1(The acts of March 3, 1883 (22 Stat. L., 460), July 5, 1884 (23 Stat. L., 112), and
March 3, 1885 (23 Stat. L., 502), contain a similar provision.
456 MILITAKY LAWS OF THE UNITED STATES.
shall be paid a salary of five thousand dollars per annum
and actual traveling expenses when traveling on duty.
Act of Felyruary % 1891 (26 Stat. Z., 769).
NO member to 1214. Hereafter no person shall be a member of or serve
be interested m
device, etc., be- on said Board who has been or is in any manner interested
fore Board. J
Feb. is, 1893, v. m any invention, device, or patent which, or anything
similar to which, has been considered or may be cons id
ered by or come before said Board for test or adoption :
or who is connected with or in the employ of any manu-
facturer who has or shall have contracts with the United
States for any ordnance materials. Act of February 18.
1893(27 Stat. L., 4,61).
bythfB?aardOUS 1215< Tlie Board is authorized to make all needful and
Pr°Per PUI'chases, investigations, experiments, and tests,
^May25,'i9o, v. to ascertain, with a view to their utilization by the Govern-
ment, the most effective guns, small arms, cartridges, pro-
jectiles, fuzes, explosives, torpedoes, armor plates, and
other implements and engines of war; and to purchase or
cause to be manufactured, under authority of the Secre-
tary of War, such guns, carriages, armor plates, and other
war material as may, in the judgment of said Board, be
necessary in the proper discharge of the duty herein
devolved upon it by the act approved September twenty -
second, eighteen hundred and eighty-eight. l Act of May
, 1900 (31 Stat. Z., 186).
1216. Before any money shall be expended in the con-
28Apg2i5.1894' v> struction or test of any gun, gun carriage, ammunition, or
lrrhe act of September 22, 1888 (25 Stat. L., 489), restricts the expenditures of the
Board in respect to the investigations, tests, experiments, etc. , which may be carried
on under its direction under that statute, by the requirement that "the amount
expended and liabilities incurred in such purchases, investigations, experiments,
and tests shall not exceed five hundred thousand dollars, which sum is hereby appro-
priated ' ' ; and that ' ' said Board shall test, and if found satisfactory, shall purchase two
breech-loading field guns of three and two tenths inch bore of aluminum bronze."
By several acts of appropriation the powers of the Board of Ordnance and Fortifi-
cation have been reduced and defined. By the act of February 24, 1891 (26 Stat. L.,
767), the appropriations of the Engineer Department, for gun and mortar batteries
and for sites of fortifications, have been withdrawn from the supervision of the
Board; by the act of July 23, 1892 (27 Stat. L.,260), all regular appropriations of the
Ordnance Department for the armament of fortifications were similarly withdrawn
from its supervision. See, also, the acts of February 18, 1893 (27 Stat. L., 461),
August 1, 1894 (28 Ibid., 215), March 2, 1895 (Ibid., 706], and June 6, 1896 (29
Ibid., 259), for similar provisions of statutes in which the Board is specially charged
with the supervision of stated funds and with the general expenditure of funds appro-
priated for experimental purposes.
The act of March 2, 1889 (25 Stat. L., 833), conferred authority upon the Board
of Ordnance and Fortification ' ' to examine and report upon a site or sites for ord-
nance testing and proving ground to be used in the testing and proving of heavy
ordnance, having in view in the selection of said site or sites their accessibility by
land and water, means of transportation, and suitability for the purpose intended,
and also the actual and reasonable cost, and value of the land embraced in said site
or sites and the least sum for which the same can be procured. Said Board shall
report thereon to the Secretary of War, to be submitted to Congress at its next ses-
sion; and in case the said Board shall select a site or sites and recommend their pur-
MILITARY LAWS O^ THE UNITED STATES. 457
implements under the supervision of the said Board, the
Board shall be satisfied, after due inquiry, that the Gov-
ernment of the United States has a lawful right to use the
inventions involved in the construction of such gun, gun
carriage, ammunition, or implements, or that the con-
struction or test is made at the request of a person either
having such lawful right or authorized to convey the
same to the Government. Act of August 1, 1894 (®8
Stat. Z., $16).
1217. For payment of the necessary expenses of the
Board, including a per diem allowance to each
detailed to serve thereon when employed on duty away 26> P- 768
from his permanent station, of two dollars and fifty cents
a day, * * * thousand dollars.1 Act of July 23,
1892 (27 Stat. Z., 260).
chase, the Secretary of War is hereby authorized to secure written proposals for the
sale of the land so recommended, until such time as Congress may act upon the
recommendation of said Board and of the Secretary of War."
To enable the Secretary of War, in his discretion, to purchase the land adjoining
the Government reservation at Sandy Hook, New Jersey, now belonging to the gran-
tees of the Highland Beach Association of New Jersey, together with the right of
way from said land to the main line of the Central Railroad Company of New Jersey,
together with the rails, ties, switches, and all the railroad equipment on said lands,
twenty-five thousand dollars, or so much thereof as may be necessary. Act of July
23, 1892 (27 Stat. L., 259).
That the President is hereby authorized to appoint a board, to consist of three
officers of the Army and three officers of the Navy, who shall examine and report
to the Secretary of War, for transmission to Congress for its consideration, what, in
their opinion, is the most suitable site on the Pacific coast, or on the rivers or other
waters thereof, for the erection of a plant for finishing and assembling the parts of
heavy guns and other ordnance for the use of the Army and Navy. That for the
payment of the necessary expenses of the board to be appointed under the foregoing
provisions the sum of two thousand five hundred dollars is hereby appropriated out
of any money in the Treasury not otherwise appropriated. Act of July 23, 1892
(27 Stat. L., 258).
1 For a similar provision see the acts of February 24, 189JL (26 Stat. L., 768) ; July 23,
1892 (27 Stat. L., 259) ; February 18, 1893 (27 Stat. L., 460) ; March 2, 1895 (28 Stat. L.,
706), and June 6, 1896 (29 Stat. L., 259). The several acts of appropriation since
that of July 23, 1892, contain provisions for similar allowances to each officer detailed
to serve on the Board of Ordnance and Fortification when on duty away from his
permanent station. The acts of appropriation since that of August 4, 1894, contain
provisions for the necessary traveling expenses of the civilian member of the board
when traveling on duty as contemplated in the act of February 24, 1891.
This provision has appeared in all subsequent acts of appropriation. An officer
who is authorized to receive compensation " while necessarily employed " only, must
produce satisfactory evidence of his employment, and of the necessity therefor, dur-
ing the period for which he claims compensation. IV Comp. Dec., 424. The Audi-
tor is authorized, and it is his duty, to require the production of satisfactory evidence
of the time of actual employment of an officer who is paid a per diem compensation
or allowance. Ibid., 479.
The mileage of officers of the Army traveling on duty connected with the Board
of Ordnance and Fortification is payable from the appropriation made for the Board
as a part of the necessary expenses incident to the performance of the work. Ill
Ibid., 332. Officers of the Army connected with the Board of Ordnance and Forti-
fication, when traveling on duty, should be furnished with transportation in kind by
the Quartermaster' s Department, in accordance with War Department Circular No. 8,
of 1897, but whether the requests for transportation addressed to the railroad com-
panies should be issued by the officers of the Quartermaster's Department exclu-
sively is to be determined by the Secretary of War. Ibid., 590.
458 MILITAEY LAWS OF THE UNITED STATES.
HISTORICAL NOTE. — The duties in connection with the procurement, manufacture,
and supply of cannon, small arms, and military stores, now performed by the Ord-
nance Department, seem to have been vested during the Revolutionary period in a
purveyor of public supplies, an office created by Congress, which ceased to exist at
the close of the war. With a view to secure proper accountability and a more effi-
cient administration in this branch of the military service, President Washington,
on January 7, 1794, recommended to Congress that the office of Purveyor of Public
Supplies be created and charged "with the duties of receiving, safe-keeping, and dis-
tributing the public supplies." The office thus recommended was~ established by
the act of February 23, 1795 (1 Stat. L., 419), and continued to exist until May 31,
1812, when, its duties having been transferred to the several departments of the staff,
it was abolished. Sec. 9, act of March 28, 1812 (2 ibid, 696).
The Ordnance Department, eo nomine, was established by the act of May 14, 1812
(ibid., 732), and was to consist of one Commissary-General of Ordnance, an assistant
commissary-general, four deputy commissaries, and as many assistant deputy
commissanes, not exceeding eight, as the President might deem necessary. The Com-
missary-General of Ordnance was to have the rank and pay of colonel, the assistant
commissary-general that of lieutenant-colonel, the deputy-commissaries that of
major, and the assistant deputy commissaries that of captain. By the act of February
8, 1815 (3 ibid., 203), the Department was reorganized, its duties were defined, and
its strength fixed at one colonel, one lieutenant-colonel, two majors, ten captains,
ten first lieutenants, and as many enlisted men, to serve as armorers, blacksmiths,
wheelwrights, artificers, etc., as the Secretary of War might deem necessary; by
the same enactment the supervision of the several armories, magazines, and arsenals
was vested in the Ordnance Department.
By section 4 of the act of March 2, 1821 (3 ibid., 283) , the Ordnance Department
was merged in the artillery, one captain being added to each regiment of artillery
for ordnance duty. Although the Department ceased to exist, for the time, as a
separate establishment, the duties pertaining to the ordnance service seem to have
continued to be performed by officers of artillery detailed for the purpose. By the
act of April 5, 1830 (4 ibid., 504), the Ordnance Department was reconstituted, with
the following commissioned, strength: One colonel, one lieutenant-colonel, two
majors, ten captains, with the pay and allowances of artillery officers of correspond-
ing grades, and as many enlisted men as might be required, not to exceed 250. By
section 2 of the act of April 5, 1830, the grade of ordnance-sergeant was established,
the number authorized to be appointed being restricted to one for each military post.
By section 13 of the act of July 5, 1838 (5 ibid., 256), the President was authorized
to add two majors to the department "when he may deem it expedient to increase
the same;" he was also authorized to transfer ten first lieutenants and ten second
lieutenants to the department from the artillery; by the act of July 7, 1838 (ibid.,
308), the number of lieutenants thus authorized to be transferred was reduced to
twelve. The act of July 5, 1838, placed officers of ordnance on the same footing in
respect to pay and allowances as officers of dragoons. By section 16 of the act of
March 3, 1847 (9 ibid., 184), the President was authorized to add to the department,
under the conditions set forth in the statute last cited, two captains and six first
lieutenants. By section 3 of the act of August 3, 1861 (12 ibid., 287), a chief of ord-
nance, with the rank and pay of Quartermaster-General (brigadier-general), one
colonel, one lieutenant-colonel, and six second lieutenants were added to the estab-
lishment. By section 4 of the act of March 3, 1863 (ibid., 743), one lieutenant-
colonel, two majors, eight captains, and eight first lieutenants were added; the
appointments to be made by promotion "as far as the present Ordnance Corps will
permit, and the residue to be appointed by transfer from other regiments and corps
of the Army;" by this statute examinations were required in all grades below that
of field officer as a condition precedent to promotion.
By section 21 of the act of July 28, 1866 (14 ibid., 335), the peace strength of the
department was fixed at one brigadier-general, three colonels, four lieutenant-colonels,
ten majors, twenty captains, sixteen first lieutenants, and ten second lieutenants; six-
teen ordnance storekeepers were also added to the establishment. Section 6 of the act
of March 3, 1869 (15 ibid., 318), contained the requirement that there should be no
promotions or appointments in the several staff corps until otherwise directed by
law; but this restriction was removed as to the Ordnance Department by the act of
June 23, 1874 (18 ibid., 244), which reorganized the department with an authorized
strength of one brigadier-general, three colonels, four lieutenant-colonels, ten majors,
twenty captains, and sixteen first lieutenants, and provided that all vacancies in the
grade of first lieutenant should be filled by transfer from the line of the Army, sub-
ject to the examination therein prescribed. The examination for promotion, first
required by the act of March 3, 1863, was extended in its scope by the act of June
MILITAEY LAWS OF THE UNITED STATES. 459
23, 1874, so as to require that "no appointment or promotion is said department
shall hereafter be made until the officer so appointed or promoted shall have passed
a satisfactory examination before a board of ordnance officers senior to himself. r'
By the act of July 7, 1898 (30 Stat. L., 720), the composition of the Ordnance Depart-
ment was fixed at one brigadier-general, four colonels, five lieutenant-colonels,
twelve majors, twenty-four captains, and twenty first lieutenants.
By section 23 of the act of February 2, 1901 (31 Stat. L., 754), the permanent
strength of the Ordnance Department was fixed at one chief of ordnance with the
rank of brigadier-general, four colonels, six lieutenant-colonels, twelve majors, twenty-
four captains,, and twenty-four first lieutenants, together with the enlisted men,
including ordnance-sergeants, already authorized by law. A system of details was
also provided by the operation of which the permanent commissioned personnel of
the Department will be gradually replaced, as vacancies occur, by officers detailed
from the line of the Army for duty in the Ordnance Department.
CHAPTER XXIV.
THE SIGNAL CORPS.
Par.
1218, 1219. Organization.
1221-1223. Appointments,
details.
1224. Enlisted men.
promotions,
Par.
1225, 1226. War increase.
1227-1230. Duties.
1231-1234. Military telegraph lines.
ORGANIZATION.
composition. ^g The Signal Corps shall consist of one Chief Signal
Officer with the rank of brigadier-general, one colonel, one
lieutenant-colonel, four majors, fourteen captains, fourteen
first lieutenants,2 eighty first-class sergeants, one hundred
iFvb3i2'p*754. s' and twenty sergeants, one hundred and fifty corporals, two
hundred and fifty first-class privates, one hundred and
fifty second-class privates, and ten cooks.3 Sec. 24, act of
February 2, 1901 (31 Stat. Z., 764).
1219. The President is authorized to continue in service
during the present emergency, for duty in the Philippine
Islands, five volunteer signal officers with the rank of sec-
ond lieutenant. This authority shall extend only for the
period when their services may be absolutely necessary.
Sec. 24, act of February 0, 1901 (31 Stat. />., 764).
Volunteer Sig
nal Corps.
Ibid.
APPOINTMENTS, PROMOTIONS, DETAILS.
Promotions.
1220. So long as there remain any officers holding per-
manent appointments in the Signal Corps,
including those appointed to original vacancies in the
Feb. 2, i90i, s. grades of captain and first lieutenant as provided in sec-
tions sixteen, seventeen, twenty-one, and twenty-four of
'26, V. 31, p. 755.
1 For note containing the statutory history of the Signal Corps see end of chapter.
2 Section 24 of the act of February 2, 1901 (31 Stat. L., 754,) contains a proviso to the
effect that "vacancies created or caused by this section shall be filled by promotion
of officers of the Signal Corps according to seniority, as now provided by law. Vacan-
cies remaining after such promotions may be filled by appointment of persons who
have served in the Volunteer Signal Corps since April twenty-first, eighteen hundred
and ninety-eight."
3 The pay of a first-class sergeant of the Signal Corps was fixed at that of a hospital
steward by section 8, act of October 1, 1890 (26 Stat. L., 653). The pay of first-
class privates was made the same as that of privates of corresponding grade in the
engineer battalion by section 3, act of April 26, 1898 (30 Stat. L., 364).
460
MILITARY LAWS OF THE UNITED STATES. 461
this act, they shall be promoted according to seniority in
the several grades, as now provided by law, and nothing
herein contained shall be deemed to apply to vacancies
which can be filled by such promotions or to the periods
for which the officers so promoted shall hold their appoint-
ments. Sec. 26, act of February 2, 1901 (31 Stat. L., 755}.
1221. All appointments and promotions in the Signal
Corps shall be made after examination and ap-
proval under sections twelve hundred and six and twelve J
hundred and seven of the Revised Statutes,1 which are amended-
hereby amended so as to be applicable to and to provide
for the promotion of the lieutenants of the Signal Corps
in the same manner as they now apply to the Corps of
Engineers and the Ordnance Corps.2 Sec. 7, act of Octo-
ber 1, 1890 (26 Stat. L.,653).
1222. When any vacancy, except that of the chief of the pl^'isoi s
department or corps, shall occur which can not be filled 26) v- 31> P- 755>
by promotion as provided in this section, it shall be filled
by detail from the line of the Army. Sec. 26, act of Feb-
ruary 2, 1901 (31 Stat. Z., 755}.
1223. Such details shall be made from the grade in which ma<?eme ' h ° w
the vacancies exist, under such system of examination as IUd-
the President may from time to time prescribe. Ibid.
ENLISTED MEN.
1224. The Signal Corps shall consist of * * * eighty 8t^Ji| s * e d
first-class sergeants,3 one hundred and twenty sergeants, 24Fvb312> 19^ s-
one hundred and fifty corporals, two hundred and fifty
first-class privates, one hundred and fifty second-class
privates, and ten cooks. Sec. &£, act °f February 2, 1901
(31 Stat. Z., 754).
WAR INCREASE.
1225. So much of section ten of the act of Congress
approved April twenty-second, eighteen hundred and
ninety-eight, as provides that the staff of a general com-
manding an army corps shall consist of certain officers, 30> p- 75-
with the rank of lieutenant-colonel, shall be held to
1 This clause regulates the promotion, after examination, of officers holding perma-
nent appointments in the Signal Corps.
2 The clause relating to the transfer of officers of the line to the Signal Corps was
repealed by the act of February 2, 1901. Appointments to original vacancies created
or caused by that enactment are governed by the requirements of section 24. See,
in this connection, section 24, act of February 2, 1901, and note to paragraph 1218,
ante.
3By section 8 of the act of October 1, 1890 (26 Stat. L., 653), first-class sergeants of
the Signal Corps were given the pay of hospital stewards.
462 MILITARY LAWS OF THE UNITED STATES.
include among such officers a chief signal officer. Sec. 10,
act of April 22, 1898 (30 Stat. L., 361); Joint Resolution
No. 53, July 8, 1898 (ibid., 752).
Apli8Sdi898e": 1226. In time of war there shall be added to the Signal
Corps of the Army ten corporals and one hundred first-
class privates, who shall have the pay and allowances of
engineer troops of the same grade. Sec. 3, act of April
26, 1898 (30 Stat. L., 364).
Par.
DUTIES.
Par.
1227. Chief Signal Officer.
1228. The same; regulations.
1229. Accountability for property.
1230. Appropriations.
office?! dsut!ensal 1227« The Chief Signal Officer shall have cnarge, under
1890% ^6^653' ^e direction of the Secretary of War, of all military signal
duties, and of books, papers, and devices connected there-
with, including telegraph and telephone apparatus and the
necessary meteorological instruments for use on target
ranges, and other military uses; the construction, repair,
and operation of military telegraph lines, and the duty of
collecting and transmitting information for the Army by
telegraph or otherwise, and all other duties usually per-
taining to military signaling; and the operations of said
corps shall be confined to strictly military matters.1 Sec.
2, act of October 1, 1890 (26 Stat. Z., 653).
^Regulations ^to 1228. The Chief Signal Officer, subject to the approval of
chief signal offi- the Secretary of War, is hereby authorized and directed to
o'ct. 12, 1888, v. draw up and enforce in his Bureau a system of rules and
regulations for the government of the Signal Bureau, and
of all persons in said Bureau, and for the safe-keeping and
preservation of all Signal Service property of every kind,
and to direct and prescribe the kind, number, and form of
all returns and reports, and to enforce compliance therewith.
Act of October 12, 1888 (25 Stat. L., 552).
Enlisted men, 1229. From and after the passage of this act, every officer
etc., to make re- . . /E
turns of prop- oi tne oignal Corps, every noncommissioned omcer or pri-
oc't. 12, 1888, v. vate of the Signal Corps, and all other officers, agents, or
25, p. 552.
lrThe act of October 1, 1890 (26 Stat. L., 653), contained the requirement that "the
civilian duties now performed by the Signal Corps of the Army shall hereafter devolve
upon a bureau to be known as the Weather Bureau, which, on and after July first,
eighteen hundred and ninety-one, shall be established in and attached to the Depart-
ment of Agriculture, and the Signal Corps of the Army shall remain a part of the
Military Establishment under the direction of the Secretary of War, and all estimates
for its support shall be included with other estimates for the support of the Military
Establishment." Section 4 of this enactment, which authorized the detail of officers
of the Signal Corps in the Weather Bureau of the Department of Agriculture, was
repealed by Joint Resolution No. 57, of July 8, 1898 (30 Stat. L., 752). This enact-
ment finally severed the statutory connection of this corps with the Weather Bureau.
MILITARY LAWS OF THE UNITED STATES. 463
persons who now have in possession, or may hereafter
receive or may be intrusted with any stores or supplies,
shall, quarterly or more often, if so directed, and in such
manner and on such forms as may be prescribed by the
Chief Signal Officer, make true and correct returns to the
Chief Signal Officer of all Signal Service property and all
other supplies and stores of every kind received by or
intrusted to them and each of them, or which may, in any
manner, come into their and each of their possession or
charge. Ibid.
1230. On and after July first, eighteen hundred and besi|^ioCOTps to
ninety-one, the appropriations for the support of the Sig-^.^ywith the
nal Corps of the Army shall be made with those of other 18^%9^6°pct^;
staff corps of the Army. Sec. 9, act of October 1, 1890 (26
Stat. L., 653).
MILITARY TELEGRAPH LINES.
•
1231. The Chief Signal Officer shall have charge, under
the direction of the Secretary of War, of * * * the
construction, repair, and operation of all military tele- v- 26> p- 653-
graph lines.1 Section 2, act of October 1, 1890 (26 Stat.
Z., 653).
1232. For the purpose of connecting headquarters, ii^e|ineAia&ah
Department of Alaska, at Saint Michael, by military tele- 31Mpay2^' 1900> v'
graph and cable lines with other military stations in
Alaska, four hundred and fifty thousand five hundred and
fifty dollars: Provided, That commercial business may be
done over these military lines under such conditions as
may be deemed, by the Secretary of War, equitable and
in the public interests, all receipts from such commercial
business shall be accounted for and paid into the Treasury
of the United States, and that the sum hereby appropri-
ated shall be immediately available: Provided further,
That no telegraph or cable lines owned or operated or
controlled by persons not citizens of the United States, or
by an}^ foreign corporation or government, shall be estab-
lished in or permitted to enter Alaska. Act of May 26,
1900(31 Stat. Z., 206),
1233. After the first day of July, eighteen hundred and Receipts to be
eighty-three, all moneys received for the transmission of £ryd "
private dispatches over any and all telegraph lines owned 22MPar6i6. 1883' v'
1 The act of October 1, 1890 (26 Stat. L., 653, par. 1227, ante), which places the Chief
Signal Officer in charge of "the construction, repair, and operation of military tele-
graph lines," repealed the act of August 7, 1882 (22 Stat. L., 3i9), which vested the
supervision of the construction and operation of military telegraph lines in depart-
ment commanders.
464 MILITARY LAWS OF THE UNITED STATES.
or operated by the United States shall be paid into the
Treasury of the United States, as required by section
thirty-six hundred and seventeen of the Revised Statutes;
and all acts or parts of acts inconsistent herewith are
hereby repealed. l Act of March 3, 1883 (22 Stat. L. , 61Q).
grapJ?3nes, Set 1234- Any person or persons who shall willfully or
?n te ??e ^eifce maliciously injure or destroy any of the works or propery
o!ifructTonke?cg'; or material of any telegraphic line constructed and owned,
pejimey<23, 1874, or ^ process of construction, by the United States, or
v. is, p. 250. ^at may i^ hereafter constructed and owned or occupied
and controlled by the United States, or who shall willfully
or maliciously interfere in any way with the working or
use of any such telegraphic line, or who shall willfully or
maliciously obstruct, hinder, or delay the transmission of
any communication over any such telegraphic line, shall
be deemed guilty of a misdemeanor, and, on conviction
thereof in any district court of the United States having
jurisdiction of the same shall be punished by a fine of not
less than one hundred nor more than one thousand dollars,
or with imprisonment for a term not exceeding three
years, or with both, in the discretion of the court. Act
of June 23, 1874 (18 Stat. Z., 250).
HISTORICAL NOTE. — The office of Signal Officer of the Army, with the rank of major
of cavalry, was established by the act of June 21, 1860 (12 Stat. L., 66). By section
17 of the act of March 3, 1863 (ibid., 753), a signal corps was created to consist of a
Chief Signal Officer with the rank of colonel, one lieutenant-colonel, two majors who
were to be inspectors, and, for each army corps or military department, one captain
and as many lieutenants, not exceeding eight, as the President might deem necessary.
The officers thus provided for were to receive the mounted pay of their grades, arid
were to continue in service during the pendency of the existing rebellion. For each
officer authorized by the act of March 3, 1863, one sergeant and six privates were to
be detailed from the volunteer armies, who were to receive the pay and allowances
of enlisted men of engineers. Eligibility for appointment and detail were to be deter-
mined, in part, by prior faithful service in the acting signal corps, and were condi-
tioned ip. all cases, upon the successful passage of a preliminary examination.
A permanent signal corps was added to the military establishment by section 22 of
the act of July 28, 1866 (12 Stat. L., 335) (which was embodied in the Revised Stat-
utes as sections 1165, 1166, and 1167) . It was to consist of a Chief Signal Officer, with
the rank of colonel of cavalry, and of six officers of the line, detailed for signal duty,
and one hundred enlisted men, detailed from the battalion of engineers; these
details were to be conditioned upon the successful passage of a preliminary exam-
ination, and the officers, while so detailed, were to receive mounted pay. By the
act of March 3, 1871 (16 ibid., 520), certain duties in connection with the observation
and report of storms were assigned to the department. By the act of June 18, 1878
1 The act of March 3, 1875, contained a provision authorizing the Secretary of War
1 ' to pay the expenses of operating and keeping in repair the said telegraph lines out
of any money received for dispatches sent over said lines; any balance remaining
after the payment of such expenses to be covered into the Treasury as a miscellaneous
receipt; the money received in any one fiscal year to be used only in payment for
the expenses of that year. And a full report of the receipts and expenditures in
connection with the said telegraph lines shall be made quarterly to the Secretary of
War, through the Chief Signal Officer. And the Chief Signal Officer shall have the
charge and control of said lines of telegraph in the construction, repair, and operation
of the same."
MILITARY LAWS OF THE UNITED STATES. 465
(20 ibid., 146), the number of enlisted men, hitherto fixed by Executive regulation,
was established at four hundred and fifty, and by the act of June 20, 1878 (ibid., 219),
the enlisted force of the department was fixed at one hundred and fifty sergeants, thirty
corporals, and two hundred and seventy privates, who were to receive the pay and
allowances of enlisted men of corresponding grades in the battalion of engineers.
By this enactment extra-duty pay was prohibited, and the commissioned force of the
department was increased by the annual appointment of two second lieutenants, who
were to be selected from the grade of sergeant. By the act of June 16, 1880 (21 ibid.,
267), the rank of brigadier-general was conferred upon the Chief Signal Officer, and
the number of privates was increased to three hundred and twenty; by the act of
August 4, 1886 (24 ibid., 247), the number of second lieutenants was limited to six-
teen, the school of instruction at Fort Myer, Va., was abolished, and the Secretary
of War was authorized to detail five commissioned officers of the Army for signal
duty, this number to be in addition to the second lieutenants already authorized by
law; this requirement was repeated in the acts of October 2, 1888 (26 ibid., 537), and
March 2, 1889 (ibid., 969), by which enactments the number of second lieutenants
was reduced to fourteen.
By the act of October 1, 1890 (26 Stat. L., 653), the Weather Service was trans-
ferred to the Department of Agriculture and the strength of the Signal Corps was
established at one Chief Signal Officer (brigadier-general), one major, four captains,
and four first lieutenants mounted, and fifty sergeants who were to have the pay
and allowances of hospital stewards. The second lieutenants not selected for appoint-
ment as first lieutenants were to be transferred to the line of the Army. By the act
of August 6, 1894, the department was reorganized, the reorganization to take effect
upon the occurrence of a vacancy in the office of Chief Signal Officer, when the corps
was to consist of one colonel, one lieutenant-colonel, one major, three captains, and
three first lieutenants; by the act of March 2, 1897 (29 ibid., 611), the promotions
provided for in the act of August 6, 1894, were authorized to be made. . By section 2
of the act of May 18, 1898 (30 ibid.., 417), and joint resolution No. 53, of July 8, 1898
(ibid., 749), a volunteer Signal Corps was authorized, to consist of one colonel, one
lieutenant-colonel, one major, as disbursing officer, and such other officers and men
as might be required, not exceeding one lieutenant-colonel for each army corps, and
two captains, two first lieutenants, five first-class sergeants, ten sergeants, ten cor-
porals, and thirty first-class privates to each organized division of troops, a certain
proportion of whom were to be skilled electricians or telegraph operators.
By section 24 of the act of February 2, 1901 (31 Stat. L., 754), the permanent
strength of the Signal Corps was fixed at one Chief Signal Officer with the rank of
brigadier-general, one colonel, one lieutenant-colonel, four majors, fourteen captains,
fourteen first lieutenants, eighty first-class sergeants, one hundred and twenty ser-
geants, one hundred and fifty corporals, two hundred and fifty first-class privates,
one hundred and fifty second-class privates, and ten cooks; and a system of details was
established by the operation of which the permanent commissioned personnel of
the department will be gradually replaced, as vacancies occur, by officers detailed
from the line of the Army for duty in the Signal Department.
22924—08 30
CHAPTER XXV.
THE RECORD AND PENSION OFFICE.
Par.
1235-1236. Organization.
1237. Duties.
1238. Returns, muster rolls, etc.
1239. The same; wars of the Revolution
and 1812.
1240. Clerks, how employed.
27, p. 27.
Composition.
Feb. 2, 1901, s
25, v. 31, p. 754.
Par.
1241-1253. Removal of charge of deser-
tion.
1254-1256. Remuster of officers of volun-
teers.
1257. Certificates of service United States
Military Telegraph Corps.
1235. The division organized by the Secretary of War
in his office for the preservation and custody of the rec-
ords of the volunteer armies under the name of the Record
and Pension Division is hereby established as now organ-
ized, and shall hereafter be known as the Record and Pen-
sion Office of the War Department. Act of May 9, 1892
(27 Stat. L., 27).
1236. The officers of the Record and Pension Office of
the War Department shall be a chief of said office with
the rank of a brigadier-general and an assistant chief of
said office with the rank of major: Provided, That any
person appointed to be Chief of the Record and Pension
Office after the passage of this act shall have the rank of
colonel. Section 25, l act of February 2, 1901, (31 Stat. L. ,
754).
Maye9S;i892, v. 1237- The Record and Pension Office of the War Depart-
27, p. 27. ment shall, under the Secretary of War, have charge of
the military and hospital records of the volunteer armies
and the pension and other business of the War Depart-
ment connected therewith; and all laws or parts of laws
inconsistent with the terms of this act are hereby repealed.
Act of May 9, 1892 (27 Stat. L., 27).
mSmroiiasnodf 1238- All returns and muster rolls of organizations of
volunteers. ^^ ^e Volunteer Army and of militia organizations while in
s.8,v.30,p.'362. tke service Of the United States shall be rendered to the
Section 8 of the act of March 2, 1899 (30 Stat. L., 979), contained the same
requirement. By the act of March 3, 1899 (ibid., 1007) , this office was exempted from
the operation of the reduction clauses of the act of March 2, 1899.
466
MILITARY LAWS OF THE UNITED STATES. 467
Adjutant-General of the Army, and upon thedisbandment
of such organizations the records pertaining to them shall
be transferred to and filed in the Record and Pension
Office of the War Department. And regimental and all
other medical officers serving .with volunteer troops
in the field or elsewhere shall keep a daily record of all
soldiers reported sick, or wounded as shown by the morn-
ing calls or reports, and shall deposit such reports with
other reports provided for in this section with the Record
and Pension Office, as provided herein for other reports,
returns and muster rolls. Section 8, act of April 22, 1898
(30 Stat. L., 362).
1239. All military records, such as muster and pay rolls, ti(4ar?army rec-
orders, and reports relating to the personnel or the opera- fe^redetfo secre-
tions of the armies of the Revolutionary war and of the ta^yugf ^'1894
war of eighteen hundred and twelve, now in any of the v-28'p-403-
Executive Departments, shall be transferred to the Secre-
tary of War, to be preserved, indexed, and prepared for
publication.1 Act of August 18, 1894 (%$ Stat. Z., 403).
1240. All the employees provided for * * * theRec-
ord and Pension Office of the War Department shall be
exclusively engaged on the work of this office.2 Act tf
July 16, 1892 (27 Stat. Z., 92).
REMOVAL OF THE CHARGE OF DESERTION.
1241. The charge of desertion now standing on the rolls d °8hearrtfoJ r°e!
and records in the Record and Pension Office of the WwJJj^^JJgg
Department against any soldier who served in the late vo^t|er^ar 2
war in the volunteer service shall be removed in all cases 188J' V-QH$&>869-
jMciy y, lotT^, v.
where it shall be made to appear to the satisfaction of the 27- p- 27-
Secretary of War, from such rolls and records, or from
other satisfactory testimony, that such soldier served
faithfully until the expiration of his term of enlistment,
or until the first day of May, anno Domini eighteen hun-
1 The act of July 27, 1892 (27 Stat. L., 275), had contained the requirement that
' ' the military records of the American Revolution and of the war of eighteen hun-
dred and twelve, now preserved in the Treasury and Interior Departments, be
transferred to the War Department, to be preserved in the Record and Pension Di-
vision of that Department, and that they shall be properly indexed and arranged for
use."
The acts of March 2, 1895 (28 Stat. L., 788), and May 28, 1896 (29 ibid., 161),
authorizing the Secretary of War, upon the application of the governor of a State, to
furnish to such governor a transcript of the military history of any regiment or com-
pany furnished by his State, under such regulations as might be prescribed by the
Secretary of War, the expense of preparing such transcript to be borne by the State
requesting it.
'Subsequent acts of appropriation since that of July 16, 1892 (27 Stat. L., 92),
have contained the same restriction.
468 MILITARY LAWS OF THE UNITED STATES.
dred and sixty -five, having previously served six months
or more, and, by reason of absence from his command at
the time the same was mustered out, failed to be mustered
out and to receive an honorable discharge, or that such
soldier absented himself from his command, or from hos-
pital while suffering from wounds, injuries, or disease
received or contracted in the line of duty and was pre-
vented from completing his term of enlistment by reason
of such wounds, injuries, or disease. Acts of March 2,
1889 (25 Stat. L., 869); May 9, 1892 (27 ibid., 27).
ior\PePmSvlL°ns 1842- The Secretary of War is hereby authorized to
sec. 2, ibid, remove the charge of desertion from the record of any
regular or volunteer soldier in the late war upon proper
application therefor, and satisfactory proof in the follow-
ing cases:
Return to duty Yirst. That such soldier, after such charge of desertion
was made, and within a reasonable time thereafter, volun-
tarily returned to his command and served faithfully to
the end of his term of service, or until discharged.
wck^wounde1^ Second. That such soldier absented himself from his
command or from hospital while suffering from wounds,
injuries, or disease, received or contracted in the line of
duty, and upon recovery voluntarily returned to his com-
mand and served faithfully thereafter, or died from such
wounds, injuries, or disease while so absent, and before
the date of muster out of his command or expiration of
his term of service, or was prevented from so returning
by reason of such wounds, injuries, or diseases before such
muster out or expiration of service.
Hmrgedbyorder Third. That such soldier was a minor, and was enlisted
°fse°cUr2t'tbMi without the consent of his parent or guardian, and was
26Mpars224 1891' v< released or discharged from such service by the order or
decree of any State or United States court on habeas
corpus or other judicial proceedings; and in such case
such soldier shall not be entitled to any bounty or allow-
ance or pay for any time such soldier was not in the per-
formance of military duty. Sec., 2, ibid. Act of March
2, 1891 (26 Stat. L.", 821^).
charg?whe£resSif 1244> ^he charge of desertion now standing on the rolls
diMarree21isie9ds an(* records in the office of the Adjutant-General of the
3'^Vi8?29'Y Army [or the Record and Pension OflSce of the War De-
27, p. 27. partment] 1 against any regular or volunteer soldier who
served in the late war of the rebellion by reason of his
having enlisted in any regiment, troop, or company, or in
TAct of May 9, 1892 (27 Stat. L., 27).
MILITARY LAWS OF THE UNITED STATES. 469
the United States Navy or Marine ( Wps. without having
first received a discharge from the regiment, troop, or
compan}T in which he had previously served shall be re-
moved in all cases wherein it shall be made to appear to
the satisfaction of the Secretary of War, from such rolls
and records, or from other satisfactory testimony, that
such reenlistment was not made for the purpose of secur-
ing bounty or other gratuity that he would not have been
entitled to had he remained under his original term of
enlistment; that the absence from the service did not Limitation,
exceed four months, and that such soldier served faith-
fully under his reenlistment. Sec. 3, acts of March 2, 1889
(25 8tat, L., 869}; May 9. 1892, (27 ibid, '27).
1245. Whenever it shall appear from the official records Jffi?t?id?i*
in the office of the Adjutant-General, United States Army etgec 4 ^^
[or the Record and Pension Office of the War Department *],
that any regular or volunteer soldier of the late war was
formally restored to duty from desertion by the com-
mander competent to order his trial for the offense, or,
having deserted and being charged with desertion, was, on
return to the service, suffered, without such formal restora-
tion, to resume his place in the ranks of his command,
serving faithfully thereafter until the expiration of his
term, such soldier shall not be deemed to rest under any
disability because of such desertion in the prosecution of
any claim for pension, on account of disease contracted
or wounds or injuries received in the line of his duty as a
soldier. Sec. h iMd.
1246. .When the charge of desertion shall be removed typay and boun'
under the provisions of this act from the record of any Sec-MMrf.
soldier, such soldier, or, in case of his death, the heirs or
legal representatives of such soldier, shall receive the pay
and bounty due to such soldier. Sec. 5, ibid.
1247. This act shall not be so construed as to give to any Not entitled to
i . . i • i Pfty< etc-> while
such soldier, or, in case oi his death, to the heirs or legal absent without
' & leave.
representatives ot any such soldier, any pay, bounty, or iMd.
allowance for any time during which such soldier was ab-
sent from his command without proper authority, nor shall
it be so construed as to give any pay, bount}^ or allow-
ance to any soldier, his heirs or legal representatives, who
served in the Army a period of less than six months.2
Sec. 5, il)t<J.
'Act of May 9, 1892 (27 Stat. L., 27).
2 The persons from whose military record there may be a removal of the charge of
desertion, under the act of March 2, 1889, chapter 390, are those against whom such
a charge is "now standing." Deserters, therefore, wh
lose cases had, at the date of
470 MILITARY LAWS OF THE UNITED STATES.
1248- The Secretary of War is hereby authorized and
amend the military record of any soldier who
of deser- en}jste(j for ^he war with Mexico, upon proper applica-
sec. 6, ibid, tion, where the rolls and records of the Adjutant-General's
Office show the charge of desertion against him, when such
rolls and records show the facts set out in the following
cases:
^ Length of serv- First. That said soldier served faithfully the full term of
his enlistment, or having served faithfully for six months
or more, and until the fourth day of July anno Domini
eighteen hundred and forty-eight, left his command without
having received a discharge.
Voluntary re- Second. That such soldier, after said charge of desertion
was entered on the rolls, voluntarily returned to his com-
mand within a reasonable time, and served faithfully until
discharge. Sec. 6, ibid.
casesexcepted. 1249. The provisions of this act shall not be so con-
SGC 7 ibicl
strued as to relieve any soldier from the charge of deser-
tion who left his command from disaffection or disloyalty
to the Government, or to evade the dangers and hardships
of the service, or whilst in the presence of the enemy (not
being sick or wounded), or while in arrest or under charges
for breach of military duty, or in case of a soldier of the
Mexican war who did not actually reach the seat of war.
8ec. 7, ibid.
the act, been judicially duly disposed of — by trial, conviction, and sentence by
court-martial — are not within the purview of the statute. Dig. Opin. J. A. G.,
par. 1103.
Held, that a soldier had ' ' served faithfully ' ' in the sense of section 1 of the last-
named act when, having been sentenced to reduction and confinement on -conviction
of desertion, his sentence had been duly executed, and he had thereupon returned
to duty and served for a considerable further period in a status of honor. Ibid.,
par. 1104.
The act of 1 889 provides that the charge of desertion shall be removed if the soldier
has "served faithfully until * * * May 1, 1865, having previously served six
months or more" * * Held, that the six months of service need not have been
continuous, provided they were actually served before May 1, 1865, and the soldier
was in service at that date. Ibid., par. 1105.
Held, that a soldier was not within the description of the third division, section 2,
of the act of 1889, of having been " discharged" from service by a court of " compe-
tent jurisdiction," who had, as a minor, enlisted without consent, been discharged
upon habeas corpus by a State court. Ibid., par. 1107.
A pardon does not operate retroactively, and can not therefore " remove a charge"
of desertion. It does not wipe out the fact that the party did desert, nor can it
make the record say that he did not desert. It can not change facts of history. Ibid. ,
par. 1117.
The restoration of a deserter to duty without trial under par. 132, A. R. [1895],
does not operate as an acquittal, or relieve the deserter from the forfeitures of pay
(including retained pay) incurred by operation of law under paragraphs 1380 and
1381, A. R. 1895. Ibid., 351, par. 48.
MILITARY LAWS OF THE UNITED STATES. 471
1250. When such charge of desertion is removed under
the provisions of this act, the soldier shall be restored
a status of honorable service, his military record shall be sec.8,iwa.
corrected as the facts may require, and an honorable dis-
charge shall be issued in those cases where the soldier has
received none; and he shall be restored to all his rights as
to pension, pay, or allowances as if the charge of desertion cl|gjf on« etc-'
had never been made; and in case of the death of said sol-
dier, his widow or other legal heir shall be entitled to the
same rights as in case of other deceased honorably dis-
charged soldiers. Sec. 8, ibid.
1251. This act shall not be construed to give to any ab*e°n
soldier, or his legal representatives or heir, any pay or
allowance for any period of time he was absent without
leave and not in the performance' of military duty. Ibid.
1252. All applications for relief under this act shall be
made to and filed with the Secretary of War within the {;e;g9>from July
period of three years from and after July first, eighteen t-6ffcs> 9 and 10>
hundred and eighty-nine, and all applications not so made
and filed within said term of three years shall be forever
barred, and shall not be received or considered.1 Sec. #,
ibid.
1253. Section nine of the act for the relief of certain tnaw^Sa™
volunteer and regular soldiers of the late war and the war <2&^\ii 1895) v'
with Mexico, approved March second, eighteen hundred
and eighty-nine, is hereby so amended as to remove the
limitation of time within which applications for relief may
be received and acted upon under the provisions of said
act. Act of March 2, 1895 (28 Stat. Z., 814).
REMUSTEK OF OFFICERS OF VOLUNTEERS.
1254. Any person who was duly appointed or commis- cajege m u s * e r
sioned to be an officer of the volunteer service during the 29^593' 1897' v'
war of the rebellion, and who was subject to the muster-
ing regulations at the time applied to members of the
volunteer service, shall be held and considered to have
been mustered into the service of the United States in the
grade named in his appointment or commission from the
date from which he was to take rank under and by the
terms of his said appointment or commission, whether the
1 The act of July 27, 1892 (27 Stat. JL, 278), extended the operation of this section
for a period of two years from July 1, 1892. By the act of March 2, 1895 (28 ibid.,
814), the limitation of time was indefinitely extended.
472 MILITARY LAWS OF THE UNITED STATES.
same was actually received by him or not, and shall be
entitled to pay, emoluments, and pension as if actually
mustered at that date: Provided, That at the date from
which he was to take rank by the terms of his said appoint-
ment or commission there was a vacancy to which he could
be so appointed or commissioned, and his command bad
either been recruited to the minimum number required by
law and the regulations of the War Department, or had
been assigned to duty in the field, and that he was actually
performing the duties of the grade to t which he was so
appointed or commissioned; or if not so performing such
duties, then he shall be held and considered to have been
mustered into service and to be entitled to the benefits of
such muster from such time after the date of rank given
in his commission as he may have actually entered upon
such duties: Provided further, That any person held a& a,
prisoner of war, or who ma)^ have been absent by reason
of wounds, or in hospital by reason of disability received
in the service in the line of duty, at the date of issue of
his appointment or commission, if a vacancy existed for
him in the grade to which so appointed or commissioned,
shall be entitled to all the benefits to which he would have
been entitled under this act if he had been actually per-
forming the duties of the grade to which he was appointed
or commissioned at said date: Provided further , That this
act shall be construed to apply only in those cases where
the commission bears date prior to June twentieth, eighteen
hundred and sixty-three, or after that date when the com-
mands of the persons appointed or commissioned were not
below the minimum number required by then existing laws
and regulations: And provided further, That the pay and
allowances actually received for the period covered by the
recognition extended under this act shall be deducted from
the sums otherwise to be paid thereunder. Act of Feb-
ruary &}, 1897 (29 Stat. Z., 593}.
1255. The heirs or legal representatives of any per-
son whose muster into service shall be recognized and
established under the terms of this act shall be entitled to
receive the arrears of pay and emoluments due, and the
pension, if any, authorized by law, for the grade to which
recognition shall be so extended. Sec. 2, ibid.
1256. The pay and allowances of any rank or grade
paid to and received by any military or naval officer in
good faith for services actually performed by such officer
MILITARY LAWS OF THE UNITED STATES. 473
•
in such rank or grade during the war of the rebellion,
other than as directed in the fourth proviso of the first
section of this act, shall not be charged to or recovered
back from such officer because of any defect in the title of
such officer to the office, rank, or grade in which such serv-
ices were so actually performed. Sec. 3, ibid.
CERTIFICATES OF SERVICE IN MILITARY TELEGRAPH CORPS.
1257. The Secretary of War is hereby authorized and
directed to prepare a roll of all persons who served not29'p<497-
less than ninety days in the operation of military tele-
graph lines during the late civil war, and to issue to each,
upon application, unless it appears that his service was not
creditably performed, or to the representatives of those
who are dead, suitable certificates of honorable service in
the military telegraph corps of the Army of the United
States, stating the service rendered, the length of such
service, and the dates, as near as may be, between which
such service was performed: Provided, That this law shall Restriction
not be construed to entitle the persons herein mentioned
to any pay, pension, bounty, or rights not herein specific-
ally provided for. Act of January 26, 1897 (29- Stat L.,
497).
CHAPTER
Par.
CHAPLAINS.
Par.
1258, 1259. Appointment.
1260. Qualifications, age.
1261. The same.
1262. Assignments.
1263,1264. Duties.
1265. Reports.
1266. Facilities in performance of duties.
1258- Tlie President is authorized to appoint, by and
12sec.ii2^',R?s. W^h the advice and consent of the Senate, chaplains in the
sec. 1122, K.S. Army, at the rate of one for each regiment of cavalry and
infantry in the United States service, and twelve for the
corps of artillery, with the rank, pay, and allowances of
captains of infantry.1 Sec. 12, act of February 2, 1901 (31
Stat. Z., 750}.
1259. The office of post chaplain is hereby abolished,
and the officers holding commissions as chaplains, or who
may hereafter become chaplains, shall he assigned to regi-
ments or to the corps of artillery. Sec. 1%, act of Febru-
ary 2, 1901 (31 Stat. Z., 750).
1260. No person shall be appointed a chaplain in the
Regular Army who shall have passed the age of forty
Section 18 of the act of July 5, 1838 (5 Stat. L., 259), conferred authority upon
the officers composing the councils of administration, at certain posts to be desig-
nated by the Secretary of War, to employ from time to time such person as they
might think proper to officiate as chaplain. The person so selected and appointed
was also to perform the duties of schoolmaster at the post at which he was employed.
The chaplains so appointed were to receive as compensation a sum to be determined
by the council of administration, with the approval of the Secretary of War, but such
sum was not to exceed forty dollars per month in any case; each chaplain was
allowed four rations per day, with fuel and quarters. The number of chaplain posts,
which was fixed at twenty by the act of July 5, 1838, was increased to forty by sec-
tion 3 of the act of March 3, 1849 (9 Stat. L., 351). Section 7 of the act of July 28,
1866 (14 Stat L., 333), recognized and continued in service the existing force of chap-
lains; by section 7 of the act of March 2, 1867 (14 Stat. L., 423), chaplains were
placed on the same footing in respect to tenure of office, retirement, pensions, and
other allowances as other officers of the Army.
Under the authority conferred by the act ot April 22, 1898 (30 Stat. L., 363), each
regiment of volunteers is entitled to one chaplain; by the act of July 8, 1898 (Ibid.,
729), it was provided that chaplains in the volunteer service should have the
pay and allowances of captains mounted. The act of March 2, 1899 (30 Stat. L.,
977) , makes no specific provision for chaplains for the force of volunteers therein
authorized.
474
MILITARY LAWS OF THE UNITED STATES. 475
years, nor until he shall have established his fitness as
required by existing law. Sec. 12, act of Februai^y 8, 1901
(31 Stat. L., 750).
1261. No person shall be appointed as regimental or post ^Qualifications
chaplain until he shall furnish proof that he is a regularly g^^Vi^'p
ordained minister of some religious denomination, in good 59|ec 1123 K g
standing at the time of his appointment, together with a
recommendation for such appointment from some author-
ized ecclesiastical body, or from not less than five accredited
ministers of said denomination.
1262. Chaplains may be assigned to such stations as the j^fS™ 901', s.
Secretary of War shall direct, and they may be trans- 12> v- 81> p- 15°-
f erred, as chaplains, from one branch of the service or
from one regiment to another, by the Secretary of War,
without further commission. When serving in the field,
chaplains shall be furnished with necessary means of
transportation by the Quartermaster's Department. Sec.
12, act of February 2, 1901 (31 Stat. Z., 750).
1263. All regimental chaplains and post chaplains shall, g^^ as cler"
when it may be practicable, hold appropriate religious 53ASP£ y.'isfS^!
services, for the. benefit of the commands to which the}' sec. 1120, B.S.
may be assigned to duty, at least once on each Sunday,
and shall perform appropriate religious burial services at
the burial of officers and soldiers who may die in such
commands.
1264. The duty of chaplains of regiments of colored sch<5i4eachers.8
troops and of post chaplains shall include the instruction I6
of the enlisted men in the common English branches of
education. l p ', B.S.
re~
1265. Post and regimental chaplains shall make monthly Ports°nthly
reports to the Adjutant-General of the Army, th rough 53AsP3(v.'i38^.'46;
the usual military channels, of the moral condition MidjJ^jJif^0"
general history of the regiments or posts to which they Sec-11^6' K*s*
may be attached.
1266. It shall be the duty of commanders of regiments, p£j£mmceS 3
hospitals, and posts to afford to chaplains, assigned to thedu*iers-9 1864 c
same for duty, such facilities as may aid them in the per- ^^J^ s
formance of their duties.
HISTORICAL NOTE. — The office of chaplain existed in the Revolutionary armies, as
is indicated by the requirement of section 1, article 4, of the Rules and Articles of
War of 1776, which provides a penalty for the nonperformance of the duties appro-
1 For statutory provisions respecting post schools, see the article relating to military
posts in the chapter entitled THE PUBLIC LANDS. These schools are administered in
accordance with paragraphs 321, 341, 350, 351, 355, 362, 1110, 1118, 1124, 1127, 1128,
and 1137 of the Army Regulations of 1901. For the duties and assignments of chap-
lains, see paragraphs 48-51, Army Regulations of 1901.
476 MILITARY LAWS OF THE UNITED STATES.
priate to the office. The act of March 3, 1791 (1 SUit. L., 222), authorized the
appointment of a chaplain in case the President might "deem such appointment
necessary to the public interest." As the act contemplated a brigade organization,
it would appear that the office thus conditionally created was that of a brigade rather
than a regimental chaplain. The inclusion of the chaplain in the "general staff,"
in section 7 of the act of March 5, 1792 (ibid., 242), and March 3, 1795 (ibid., 430),
would also seem to indicate the correctness of this view. No provision was made for
the services of chaplains in the enactments respecting the militia — acts of May 2,
1792 (ibid., 264), and May 8, 1792 (ibid., 267)— although these statutes are still in
force. The office of chaplain was discontinued on October 1, 1796, in conformity to
the requirements of the act of May 30, 1796 (ibid., 483), "to ascertain and fix the
military establishment of the United States." The acts authorizing the creation of
a provisional army, approved May 28, 1798 (ibid., 561), made no provision for the
services or compensation of chaplains, but this omission was supplied by a provision
for-four chaplains in the act of July 16, 1798 (ibid., 604), who were to be attached
to the general staff, and were to receive the pay and allowances of majors. No pro-
vision was made for these officers, however, in the act of March 3, 1799 (ibid., 749).
By the acts of February 2, 1800 (2 ibid., 7), and May 14, 1800 (ibid., 85), the oper-
ation of the foregoing enactments was suspended, and the act of March 16, 1802
(ibid., 133), contained no provision for chaplains, or for the procurement of religious
services at military posts.
The act of April 12 1808 (2 Stat. L. 481, section 7), passed in contemplation of war
with England, authorized the appointment of brigade chaplains, and similar provision
was made in section 24 of the act of February 6, 1812 (ibid., 671) , which conferred
upon these officers the pay and allowances of majors of infantry, and this last-named
requirement was repeated in section 16 of the act of January 20, 1813 ( ibid. , 791 ). The
acts of March 3, 1815 (3 Stat. L., 224); April 24, 1816 (ibid., 297); April 14, 1818 (ibid.,
420) ; April 20, 1818 (ibid., 460) ; March 2, 1821 (ibid., 615) , to reduce and fix the mili-
tary peace establishment, made no provision for these officers which then ceased to
exist.
The office of post chaplain was established by section 18 of the act of July 5, 1838
(5 Stat. L., 259), appointments thereto being vested in the councils of administration of
the several military posts. Chaplains were to act as post schoolmasters, and their
compensation was to be fixed by the post councils, with the approval of the Secretary
of War, but was in no case to exceed forty dollars per month, with four rations per
day and an established allowance of fuel and quarters. The number of chaplain
posts was fixed at twenty by the act of July 7, 1838 (ibid., 308), which were to be des-
ignated by the Secretary of War, and were to be "confined to places most destitute
of instruction. ' ' By section 3 of the act of March 2, 1849 ( 9 ibid. , 357 ) , the number of
chaplain posts was increased to thirty, and by section 2 of the act of February 21,
1857 (11 ibid., 163)', the monthly pay proper of chaplains was increased to a sum not
exceeding sixty dollars, subject to the approval of the post council of administration.
For each of the regiments of volunteers authorized to be rdsed for the war with
Mexico a chaplain was authorized, and power was conferred upon the President to
order the existing post chaplains to the theater of active operations, and, in the event
of their refusal to obey such order, their offices were to be declared vacant by the
Adjutant-General of the Army; Section 7, act of February 11, 1847 (9 Stat. L., 124).
During the war of the rebellion a chaplain was authorized for each regiment of vol-
unteers, who was to have the pay and allowances of a captain of cavalry; section 9,
act of July 22, 1861 (12 Stat. L., 270). By section 7 of the act of August 3, 1861 (ibid. ,
288), none but ministers of some Christian denomination were to be eligible for appoint-
ment. By section 2 of the act of May 30, 1862 ( ibid. , 404) , the President was authorized
to appoint a chaplain for each general hospital ; by the act of July 17, 1862 (ibid. , 594 ) ,
their pay and allowances were fixed and the qualifications for the office were estab-
lished. Rank, without command, was conferred by the act of April 9, 1862 ( 13 ibid. ,
46) , in which enactment their duties were still further defined. By section 31 of the act
of July 28, 1866 ( 14 ibid. , 337) , the existing force was recognized and continued , and one
chaplain was authorized for each regiment of colored troops established, "whose duty
shall include the instruction of the enlisted men in the common English branches of
education;" by section 7 of the act of March 2, 1867 (ibid., 423), the rank of captain
of infantry, without command, was conferred, and chaplains were placed upon the
same footing in respect to pay, allowances, and emoluments as other officers of the
Army. By section 12 of the act of February 2, 1901 (31 ibid., 750), the distinction
between post and regimental chaplains was abolished and chaplains were thereafter
required to be assigned to regiments of the line or to stations occupied by the troops
of the corps of artillery.
CHAJPTER
COMMISSIONED OFFICERS.
Par.
1267-1270. Appointments.
1271,1272. Promotions.
1273. Commissions.
1274-1277. Examinations for promotion-.
1278-1282. Examination of enlisted men
for promotion.
1283. Assignments to regiments.
1284. Transfers.
1285. Details to the staff.
Par.
1286, 1287. Leaves of absence, sick leaves.
1288-1296. Details to colleges.
1297-1305. Retirement of officers.
1306-1325. Retiring boards.
1326, 1327. Resignations.
1328-1330. Dismissal of officers.
1331-1335. Miscellaneous provisions.
1336-1338. Travel pay on discharge.
1339-1341. Deceased officers.
APPOINTMENTS.
1267. When any cadet of the United States Military Acad-
has gone tnrough all its classes and received a regu- 24Mpay5o.7' 1886> v'
lar diploma from the academic staff, he may be promoted
and commissioned as a second lieutenant in any arm or
corps of the Army in which there may be a vacancy and
the duties of which he may have been judged competent
to perform.2 Act of May 17, 1886 (24 Stat. L. 50).
1 In the absence of statutory restrictions, the power of the President to make appoint-
ments or promotions in the line or staff of the Army is plenary, being conferred by
Article II, section 11, paragraph 2 of the Constitution of the United States. Con-
gress, however, has established certain uniform rules of promotion, and in several
instances has prescribed the classes from which selections must be made in appoint-
ing to original or other vacancies. See, for examples of such regulation, section 3,
act of June 18, 1878 (20 Stat. L., 145); act of May 17, 1886 (24 ibid., 50); Oct. 1,
1890 (26 ibid., 562); July 30, 1892 (27 ibid., 336); March 8, 1898 (30 ibid., 261);
of general officer is made by selection from the Army."
2 The appointment of cadets and enlisted men to the grade of second lieutenant is
regulated by the acts above set forth. Section 3 of the act of June 18, 1878 (20 Stat.
L., 145) , contained the requirement that all vacancies occurring in the grade of second
lieutenant should be filled from the graduates of the Military Academy so long as
any such remained in the service unassigned, and that vacancies then remaining
should be filled by the promotion of meritorious noncommissioned officers, and that
any vacancies remaining after the exhaustion of the two classes above named might
be filled by the appointment of persons from civil life; but this provision was
expressly repealed by section 5 of the act of July 30, 1892 (27 ibid., 336). The
policy of the Executive in respect to appointments to the grade of second lieutenant
in the line of the Army is now regulated by the following requirements of Army
Regulations :
Vacancies in the grade of second lieutenant existing on the 1st day of July each
year are filled by appointment, in order, as follows: (1) From graduates of the United
477
478 MILITARY LAWS OF THE UNITED STATES.
1268> I*1 case there shall not at the time be a vacancy
in such arm or corps, he may, at the discretion of the Pres-
ident, be promoted and commissioned in it as an addi-
tional second lieutenant with the usual pay and allowances
of a second lieutenant until a vacancy shall happen. Ibid.
1269- Tne vacancies in the grade of second lieutenant
3, v^&fp.sse!' s' heretofore filled by the promotion of meritorious non-
commissioned officers of the Army under the provisions
of section three of the act approved June eighteenth,
eighteen hundred and seventy-eight, shall be filled by the
appointment of competitors favorably recommended under
this act in the order of merit established by the final
examinations Section 3, act of July 30, 1892 (27 Stat.
Z., 336).
to ^?^onSSnof 1270< Hereafter all appointments in the line of the Army
eeocte'i 1892 s shall be b}r commission in an arm of the service and not
2, /. 26, i>. 662. by commission in any particular regiment.2 Sec. #, act
of October 1, 1890 (26 Stat. Z., 56$).
States Military Academy; (2) from enlisted men of the Army found duly qualified;
(3) from civil life. Par: 26, A. R. 1901.
A civilian to be eligible for appointment must be a citizen of the United States,
Unmarried, between 21 and 27 years of age, must be examined and approved as to
habits, moral character, mental and physical ability, education, and general fitness
for the service by a board convened and constituted as provided in paragraph 25 for
the final competitive examination of soldiers. Par. 31 , ibid. For regulations respect-
ing the examination of candidates from civil life for appointment to the grade of sec-
ond lieutenant in the line of the Army see General Orders No. 35, A. G. 0., 1898, and
G. O. 156, A. G. 0., 1899.
^ee footnote (2) to section 1267.
2 An appointment or commission, in order to take effect at all, must be accepted ;
but, when accepted, it takes effect as of and from its date, i. e., the date on which it
is completed by the signature of the appointing power, or that as and from which it
purports in terms to be operative. Dig. Opin. J. A. G., 149. See also Marbury v.
Madison, 1 Cranch, 137; U. S. v. Bradley, 10 Pet., 304; U. S. v. Le Baron, 19 How., 78;
Montgomery v. U. S., 5 Ct. Cls., 97. See also chapter entitled THE EXECUTIVE.
The power of the President to fill a vacancy in the Army during a recess of the
Senate may be exercised by a letter from the Secretary of War, and such a letter
may constitute his commission, there being no law which prescribes the form of a
military commission. O'Shea v. U. S., 28 Ct. Cls., 392. Where the President is
authorized by law to reinstate a discharged Army officer, he may do so without the
advice and consent of the Senate. Collins v. U. S., 14 Ct. Cls., 22; Dig. Opin. J. A. G.,
150. An officer of the Army or Navy of the United States does not hold his office by
contract, but at the will of the sovereign power. Crenshaw v. U. S., 134 U. S., 98.
For statutory provisions respecting appointments to the lowest grades in the several
Btaff corps see the chapters so entitled.
So much of section 1218, Revised Statutes, as amended by the act of May 13, 1884
(23 Stat. L., 21), as requires that "No person who held a commission in the Army or
Navy of the United States at the beginning of the late rebellion, and afterwards served
in any capacity in the military, naval, or civil service of the so-called Confederate
States; or of either of the States in insurrection during the late rebellion, shall be
appointed to any position in the Army or Navy of the United States," was repealed
by the act of March 31, 1896 (29 Stat. L., 235). For statutory provisions regulating
the appointment of officers of volunteers to the Army see section 28 of the act of Feb-
ruary 2, 1901 (31 Stat. L., 755), and the act of March 2, 1901 (ibid., p. 900), paragraph
578 ante.
MILITARY LAWS OF THE UNITED STATES. 479
PROMOTIONS.
1271. Hereafter promotions to every grade in the Army senforitytion by
below the rank of brigadier-general, throughout each 26°^5^ 1890) v-
arm, corps, or department of the service, shall, subject to
the examination hereinafter provided for, be made accord-
ing to seniority in the next lower grade of that arm,
corps, or department.1 Sec. 2, act of October 1, 1890 (26
Stat. L.,568).
1272. Hereafter all vacancies occurring in the cavalry, JjJJ^Jf'igss a
artillery, and infantry above the grade of second lieuten-2- v. so, p. 364.
ant shall, subject to the examination now required by law,
be filled by promotion according to seniority from the
next lower grade in each arm.2 Sec. 2, act of April 86,
1898 (30 Stat. Z., 364).
lrThe act of October 1,*1890 (26 Stat. L., 562), contained the requirement that all
officers above the grade of second lieutenant in the line of the Army should, " subject
to such examination, be entitled to promotion in accordance with existing laws and
regulations." The effect of this provision was to continue the operation of the rule
of regimental promotion in respect to all officers of the line aN>ve the grade of second
lieutenant. The rule of lineai promotion was made general in its application by sec-
tion 2 of the act of April 26, 1898 (30 Stat. L., 364) . Seniority of rank alone, in the
military service, gives no right to promotion. Physical, mental, and moral fitness
are required. Steinmetz v. U. S., 33 Ct. Cls. R., 404.
2 APPOINTMENT AND PROMOTION OF COMMISSIONED OFFICERS.
Notices of appointments and promotions are issued by the War Department,
through the Adjutant-General of the Army. Par. 20, A. R., 1901.
Appointment to the grade of general officer is made by selection from the Army.
Par. 21, ibid.
Promotions in established staff corps and departments to include the grade of
colonel will be made by seniority, subject to the examinations required by law. Par.
23, ibid.
HISTORICAL NOTE.
The rule of promotion in the line of the Army, as stated in paragraph 22 of the
Regulations of 1889, required that " promotions to the rank of captain will be made
regimen tally, to major, lieutenant-colonel, and colonel, according to arm of service."
This rule, which was replaced by the act of October 1, 1890 (paragraph 938, supra),
had its origin in an order of the Secretary of War, dated May 26, 1801, which declared
that "promotions to the rank of captain' shall be made regimentally, and to the rank
of major and lieutenant-colonel in the lines of the artillery and infantry, respec-
tively." This order was supplemented by another, issued on May 7, 1808, making
the above rule for promotion in the infantry and artillery applicable to the cavalry
and riflemen.
The earliest Congressional action on the subject of promotion in the Army is con-
tained in the fifth section of the act of June 26, 1812 (2 Stat. L., 764), which provided
that thereafter "the promotion shall be made through the lines of artillerists, light
artillery, dragoons, riflemen, and infantry, respectively, according to established
rule." " The rule therein referred to is that which was established by the Executive
order as above stated, and the effect of the statute was to give the order a legislative
sanction. Subsequently, by section 12 of the act of March 30, 1814 (3 Stat. L., 113),
it was provided "that from and after the passage of this act promotions maybe
made through the whole Army in its several lines of light artillery, light dragoons,
artillery, infantry, and riflemen, respectively." Since the enactment of this last
provision, which continued in force down to the revision of the statutes, promotions
to the rank of captain have uniformly been made regimentally, so that the construc-
tion given thereto, in practice, has been that it made no change or modification of
480 MILITARY LAWS OF THE UNITED STATES.
COMMISSIONS.
1273. Hereafter the commissions of all officers under
29, p. 75. the direction and control of the Secretary of the Treas-
ury, the Secretary of War, the Secretary of the Navy,
and the Secretary of Agriculture shall be made out and
recorded in the respective Departments under which they
are to serve, and the Department seal affixed thereto, any
laws to the contrary notwithstanding: Provided, That the
said seal shall not be affixed to any such commission be-
fore the same shall have been signed by the President of
the United States. l Act of March 28, 1896 (29 Stat. L.,75).
EXAMINATION OF OFFICERS FOR PROMOTION.
fo? p?SotSnnof 1274- That the President be, and he is hereby, authorized
maj?ar°ers bel°w ^° prescribe a system of examination of all officers of the
1890% *v&vlwi Army below the rank of major to determine their fitness
for promotion, such an examination to be conducted at
such times anterior to the accruing of the right to prorno-
a^elrexaminar ^on as mav ^e ^es^ ^or ^ne interests of the service: Pro-
in°gniawder exist" vided, That the President may waiVe the examination for
promotion to any grade in the case of any officer who in
pursuance of existing law has passed a satisfactory exami-
nation for such grade prior to the passage of this act: And
provided, That if any officer fails to pass a satisfactory
examination and is reported unfit for promotion, the officer
next below him in rank, having passed said examination,
hsicsat>£ sna^ receive the promotion : And provided, That should
!ineCo?dufyed in ^e °^CGY ^l i*1 n^s physical examination, and be found
incapacitated for service by reason of physical disability
contracted in line of duty he shall be retired with the rank
the previously existing rules. According to this construction (which was acted upon
for about sixty years) the act of 1814, while it contemplated that promotions should
be made in trie several lines or arms through the whole Army, and that officers
should be promoted only in their respective lines or arms, did not prescribe how
promotions within the lines or arms should be made, whether regimentally or line-
ally. As thus understood — and the language of the act is susceptible of that inter-
pretation— there was no conflict between it and the rule adverted to.
Section 1204, Revised Statutes, contains substantially a reenactment of the provi-
sion above quoted from the act of 1814. When embodying that provision in the
Revised Statutes, it is reasonable to presume that Congress was familiar with the
construction which had been placed thereon, and so long acted upon by the execu-
tive department, and that if it had been the intention of that body to introduce a
different rule on the subject of promotion, different phraseology would have been
chosen to signify such design. By adopting the language of the previous statute the
fair inference is that its construction was acquiesced in, and that no change in the
law of promotion was intended. XVII Opin. Att. Gen., 65. See, also, paragraph
1318, post, and note 1, supra.
1 A commission, whatever its form, is but evidence of the fact that the President
has exercised his constitutional power of appointment; there is no provision of law
requiring a specified form of commission to be issued to officers in the military serv-
ice. O'Shea v. U. S., 28 Ct. Cls., 392.
MILITARY LAWS OF THE UNITED STATES. 481
to which his seniority entitled him to be promoted; but if
he should fail for any other reason he shall be suspended
from promotion for one year, when he shall be reexamined,
and in case of failure on such reexamination he shall be
honorably discharged with one year's pay from the Army.1
1275. The examination of officers appointed in the Army ^Examination
from civil life, or of officers who were officers of volun- pointed from
civil life etc
teers only, or were officers of the militia of the several
States called into the service of the United States, or were
enlisted men in the regular or volunteer service, either in
the Army, Navy, or Marine Corps, during the war of the
rebellion, shall be conducted by boards composed entirely ^composition of
of officers who were appointed from civil life or of officers
who were officers of volunteers only during said war, and
such examination shall relate to fitness for practical service Practical f n-
and not to technical and scientific knowledge; and in case
of failure of any such officer in the reexamination herein- Failure.
before provided for, he shall be placed upon the retired
list of the Armv; and no act now in force shall be so con- NO existing
J ' law to limit re-
strued as to limit or restrict the retirement of officers as tirement.
herein provided for. 2 Sec. 3, act of October 1, 1890 (26 Stat.
Z., 562).
1276. Officers entitled by this section to examination by ci°.f cjffse
a board composed entirely of officers who were appointed Sm
from civil life, or who were officers of volunteers only dur- tej*uly27 1392, v.
ing the war, may, by written waiver filed with the War 27> P- 276-
Department, relinquish such right, in which case the
examination of such officers shall be conducted by boards
composed as shall be directed by the Secretary of War.
Sec. 1, act of July £7, 189% (27 Stat. Z., 276).
1 Joint Resolution No. 48, of June 14, 1898 (30 Stat. L., 747), contains the require-
ment "that during the existing war the President may, in his discretion, waive the
one-year suspension from promotion and forthwith order the reexamination provided
in certain cases by the third proviso of section three of the act approved October
first, eighteen hundred and ninety, entitled 'An act to provide for the examination
of certain officers of the Army and to regulate promotions therein.' "
2 Under the act of Oct. 1, 1890, the finding of the board of examination that the
officer is incapacitated for duty is not per se final, but must be reported for the action
of the Secretary of War and passed upon by him. Where the finding and report of
the board have been approved but not yet executed by actual retirement, there may
intervene contingencies which would supersede such proceeding, as the trial and dis-
missal of the officer by court-martial, or the arising of new causes which might make
proper that the question of his disability be inquired into by a retiring board con-
vened under Sec. 1246, Revised Statutes. But unless some such new occasion and
ground of disqualification be presented the action of the Secretary of War in approv-
ing the report remains final and exhaustive, and the officer is entitled to be retired
under the act of 1890, and can not legally be ordered before such retiring board.
Dig. Opin. J. A. G., par. 2207.
The privilege of retirement which an officer has "with the rank to which -his
seniority entitled him to be promoted," given by the act of October 1, 1890 (26 Stat.
L., 562), is limited to cases where the officer failed in his physical examination only.
Steinmetz v. U. S., 33 (Jt. Cls., 404.
22924—08 31
482 MILITARY LAWS OF THE UNITED STATES.
Absence of of- 1277. When the exigencies of the service of any officer
Feb. 2, 1901, s. who would be entitled to promotion upon examination
32, v. 31, p. 756. .
require him to remain absent from any place where an
examining board could be convened, the President is hereby
authorized to promote such officer, subject to examination,
and the examination shall take place as soon thereafter as
practicable. If upon examination the officer be found dis-
qualified for promotion, he shall, upon the approval of the
proceedings by the Secretary of War, be treated in the
same manner as if he had been examined prior to promo-
tion. Sec. 32, act of February 2, 1901 (31 Stat. 'L., 756}.
EXAMINATION OF ENLISTED MEN FOR PROMOTION.
Promotion of 1278. The President is hereby authorized to prescribe a
enlisted men. . **
Sec. 1214, B.S. system of examination of enlisted men of the Army, by
such boards as may be established by him, to determine
their fitness for promotion to the grade of second lieutenant:
Qualifications. Provided, That all unmarried soldiers under thirty years
27, p. 3361. ' ' of age, who are citizens of the United States, are phys-
ically sound, who have served honorably not less than two
years in the Army, and who have borne a good moral
character before and after enlistment, may compete for
promotion under any system authorized by this act. 1 Act
of July 30, 1892 (27 Stat. Z., 336}.
board* minati°n 1279. The members and recorder of such boards as may
sec. 2, ibid. De established by the President, under the provisions of
the preceding section, shall be sworn in every case to dis-
charge their duties honestly and faithfully; and the boards
may examine witnesses and take depositions, for which
purposes they shall have such powers of a court of inquiry
as way be necessary. Sec. 2, ibid.
*A soldier to be eligible for the position of candidate for promotion must be a citi-
zen of the United States, unmarried, between 21 and 30 years of age on the 1st of
September following his preliminary examination, and of good moral character both
before and after enlistment. An applicant will not be ordered for the preliminary
examination unless it is apparent that on the 1st of September next following he will
have served honorably not less than two years, exclusive of technical service due to
furlough or other absence from duty in his own interest; (a) nor for the final com-
petitive examination unless he shall have so served. Applications will be made to
department commanders on or before February 1 of each year, and company com-
manders in forwarding them will certify all furloughs had by applicants, stating
under what authority they were granted. Par. 30, Army Regulations of 1895.
For regulations respecting the examination of enlisted men for promotion, prepared
by the President under the authority conferred by this section, see paragraphs 27-oL',
Army Regulations of 1901, as modified by General Orders, No. 79, A. G. O., of 1892,
No. 32, of 1899, and No. 148, of 1899.
a Referring to paragraph 30, Army Regulations, the phrase " exclusive of technical service due to
furlough or other absence from duty in his own interest " will not aply to leave of absence or furlough
granted to an enlisted man during the first two years of enlistment not exceeding fift en days in all,
nor to such longer furlough as is now authorized by paragraph 107, Army Regulations, in a case which
may be determined by competent authority to be extraordinary. Decision Assistant Secretary of War,
January 13, 1896. Circular No. 2, A. G. O., 18%.
MILITARY LAWS OF THE UNITED STATES. 483
1280. The vacancies in the grade of second lieutenant
heretofore filled by the promotion of meritorious noncom-
missioned officers of the Army, under the provisions of
section three of the act approved June eighteenth, eighteen
hundred and seventy-eight, shall be filled- by the appoint-
ment of competitors favorably recommended under this
act, in the order of merit established by the final examina-
tion. Sec. 3, ibid.
1281. Each man who passes the final examination shall eu^bufty.168
receive a certificate of eligibility, setting forth the subjects
in which he is proficient and the especial grounds upon
which the recommendation is based: Provided, That not
more than two examinations shall be -accorded to the same
competitor. Ibid.
1282. All rights and privileges arising from a certificate mart?aitof court"
of eligibility may be vacated by sentence of a court- mar- 3ec> 4'ibld-
tial, but no soldier, while holding the privileges of a certifi-
cate, shall be brought before a garrison or regimental court-
martial or summary court. Sec. 4, ibid.; act of June 18,
1898 (30 Stat. L., 483).
ASSIGNMENTS TO REGIMENTS, TRANSFERS, AND DETAILS TO THE STAFF.
1283. Officers of [all] grades in each arm of the service an1f \rSnsfer ^f
shall be assigned to regiments, and transferred from one oflo^rej 1890
regiment to another, as the interests of the service may 2' v- 26' P- 562-
require, by orders from the War Department, and here-
after all appointments in the line of the Army shall be by
commission in an arm of the service, and not by commis-
sion in any particular regiment:1 Sec. 2, act of October
1, 1890 (£6 Stat. Z., 568.).
1284. Officers may be transferred from the line to theth^sfffers to
staff of the Army without prejudice to their rank or pro- 52SgaJ'v ^p1 8i9:
motion in the line: but no officer shall hold, at the same £?r- Q24' j81'6^-
t>y, s. y, v. o, p. — VTO;
time, an appointment in the line and an appointment in J2% nse7^ g846'^-
the staff which confer equal rank in the Army. When sec. 1205,11. s.
1 Officers transferred from one arm or corps to another, on mutual application, will
be nominated for reappointment with rank as of the date of the commission of the
junior officer previous to the transfer, and upon confirmation will be recommissioned
accordingly. An officer of the lowest grade in any arm or corps who may be trans-
ferred, on his own application, to a vacancy in his grade in any other arm or corps
will take rank next after the junior officer of the arm or corps to which he is trans-
ferred, and will be nominated for reappointment, with a new date of rank if neces-
sary to fix his proper position, and upon confirmation will be recommissioned
accordingly. These new appointments and commissions will determine the rank of
transferred officers in their regiments and corps, as well as in the Army. Par. 52,
A. R,, 1901.
Officers in each arm of the service will be transferred from one regiment to another
therein, as the interests of the service require, by orders from the War Department,
without change of rank or commission. The transfer or exchange of company officers
of a regiment will be made by the Commanding General of the Army. Par. 53, ibid,
See also paragraph 1272, ante,
484 MILITAEY LAWS OF THE UNITED STATES.
any officer so transferred has, in virtue of seniority, ob-
tained or become entitled to a grade of his regiment equal
to the grade of his commission in the staff, he shall vacate
either his commission in the line or his commission in the
staff.
stfffetails to the 1285- Wnen anJ vacancy, except that of the chief of
26fvb3i2'p.9?55 s' t^ie department, shall occur (in the Adjutant-General's
Department, the Inspector-General's Department, the
Quartermaster's Department, the Subsistence Depart-
ment, the Pay Department, the Ordnance Department,
and the Signal Corps) which can not be filled by promo-
tion as provided in this section, it shall be filled by detail
from the line of the" Army, and no more permanent ap-
pointments shall be made in those departments or corps
after the original vacancies created by this act shall have
been filled. Such details shall be made from the grade in
which the vacancies exist, under such system of examina-
tion as the President may, from time to time, prescribe.
All officers so detailed shall serve for a period of four
years, at the expiration of which time they shall return
to duty with the line, and officers below the rank of lieu-
tenant-colonel shall not again be eligible for selection in
any staff department until they shall have served two
years with the line.1 Sec. 26, act of February 2, 1901
(31 Stat. L.\ 755).
LEAVES OF ABSENCE — SICK LEAVES.
seS^duringab" 1286> Officers when absent on account of sickness or
2oAvgil' p8629o: wounds,2 or lawfully absent from duty and waiting orders,
v*ai2 3pS Ja3n' snaU receive full pay; when absent with leave, for other
ii' p87^'- ^Juiy causes? Ml Pay during such absence not exceeding in the
i6! p832o-s'May s' aggr^gate thirty days in one year, and half pay during
18st'Ji265,PK.4s.' suc^ a°sence exceeding thirty days in one year. When
absent without leave, they shall forfeit all pay during
such absence, unless the absence is excused as unavoid-
able.3
1 For statutory regulations respecting details to the staff see the title Details to the
Staff, in the chapter entitled THE STAFF DEPARTMENTS.
2 For requirements of regulations respecting sick leaves see paragraphs 72-76, A. R.
1901.
3 An officer of the Army who is ordered, even 011 his own request, to proceed to a
particular place, including his home, and "there await orders," reporting thence by
letter to the Adjutant-General of the Army and to the headquarters of the depart-
ment to which he then belongs, is not an officer "absent from duty with leave"
within the act of March 3, 1863 (12 Stat. L., 736), which enacts that "any officer
absent from duty with leave, except from sickness or wounds, shall during his
absence receive half the pay and allowances prescribed by law and no more." Such
MILITARY LAWS OF THE UNITED STATES.
485
1287. That an act approved Ma}T eighth, eighteen hun- pa]
dred and seventy-four, in regard to leave of absence of 19:
Army officers, be, and the same is hereby, so amended
that all officers on duty shall be allowed, in the discretion
of the Secretary of War, sixty days' leave of absence
without deduction of pay or allowances: Provided, That
the same be taken once in two years : And provided fur-
thefi^ That the leave of absence may be extended to three
months, if taken once only in three years, or four months
if taken once only in four years.1 Act of July 29, 1876
(19 Stcit. Z., 108).
DETAILS TO COLLEGES.
eave on ful1
Par.
1288. Details from the active list,
1289. The same; restriction.
1876> v'
Par.
1290-1295. Details from the retired list.
1296. Issues of ordnance, etc.
. to co1'
gi' 1888> v-
&ec.i225,R.s.
Limit.
DETAILS FROM THE ACTIVE LIST.
1288. The President may, upon the application of any
established military institute, seminary or academy, college
or university within the United States, having capacity to
educate at the same time not less than one hundred and
fifty male students, detail an officer of the Army or Navy
to act as superintendent or professor thereof; but the num-
ber of officers so detailed shall not exceed [one hundred] 2
from the Army and ten from the Navy, being a maximum
of one hundred and ten at any time, and they shall be
apportioned throughout the United States, first, to those
State institutions applying for such detail that are required
to provide instruction in military tactics under the pro-
visions of the act of Congress of July second, eighteen
hundred and sixty-two, donating lands for the establish-
ment of colleges where the leading object shall be the
practical instruction of the industrial classes in agriculture
an officer is waiting orders in pursuance of law, but is not absent from duty on leave.
U. S. v. Williamson, 23 Wall., 411.
This statute is amendatory of the act of May 8, 1874, which provided " that all
officers on duty at any point west of a line drawn north and south through Omaha
City, and north of a line drawn east and west upon the southern boundary of Arizona,
shall be allowed sixty days' leave of absence without deduction of pay or allowances:
Provided, That the same is taken but once in two years: And provided further, That
the leave of absence may be extended to three months, if taken once only in three
years; or four months if taken once only in four years."
1 For regulations respecting leaves of absence see paragraphs 54-71, A. K., 1901.
2 The number of officers that may be detailed under the authority conferred by sec.
1225, R. S., was increased from fifty to seventy-five by the act of January 13, 1891
(26 Stat, L., 716), and to one hundred by the act of November 3, 1893 (28 ibid., 7);
see paragraph 1289, post. For orders regulating the subject of details, see G. 0., No.
70, A. G. 0., of 1897.
480 MILITARY LAWS OF THE UNITED STATES.
and the mechanic arts, including military tactics; and
after that, said details to be distributed, as nearly as may
be practicable, according to population. Act of Septem-
ber 26, 1888 (25 Stat. Z., 491).
ce?sUiScreeafedffi" 1289> Section twelve hundred and twenty-five of the
8 NOV. 3, 1893, v. Revised Statutes, concerning details of officers of the Army
and Navy to educational institutions, is hereby, amended
so as to permit the President to detail under the provisions
of said act not to exceed one hundred officers of the Army
Duration. of the United States; and no officer shall be thus detailed
who has not had five years' service in the Army, and no
detail to such duty shall extend for more than four years,
and officers on the retired list of the Army may upon their
own application be detailed to such duty and when so
detailed shall receive the full pay of their rank,1 and the
Limit as to maximum number of officers of the Army and Navy to be
detailed at any one time under the provisions of the act
approved January thirteenth, eighteen hundred and ninety-
one, amending section twelve hundred and twenty-five of
the Revised Statutes as amended by an act approved Sep-
tember twenty-sixth, eighteen hundred and eighty-eight,
is hereby increased to one hundred and ten. Act of Novem-
tier 3, 1893 (28 Stat. Z., 7).
DETAILS FROM THE RETIRED LIST.
reSrediist.from 129°- Section twelve hundred and twenty-five of the
3ifpb8io.' 1901> v' Revised Statutes, concerning the detail of officers of the
Army and Navy to educational institutions, be, and the same
is hereby, amended so as to permit the President to detail
under the provisions of that act, and in addition to the
detail of the officers of the Army and Navy now author-
ized to be detailed under the existing provisions of said
act, such retired officers of the Army and Navy of the
United States as in his judgment may be required for that
purpose, to act as instructors in military drill and tactics
in schools in the United States, where such instruction
shall have been authorized by the educational authorities
thereof, and where the services of such instructors shall
have been applied for by said authorities. Act of Febru-
ary 26, 1901 (31 Stat Z., 810).
de^nditi°ns °f 1291' ^° detail shall be made under this act to any school
sec. 2, iMd. unless it shall pay the cost of commutation of quarters of
the retired officers detailed thereto and the extra-duty pay
1 Retired officers, detailed to educational institutions upon their own application,
are now entitled to receive the full pay of their rank. VI Compt. Dec., 120.
MILITARY LAWS OF THE UNITED STATES. 487
to which the latter may be entitled by law to receive for
the performance of special duty : Provided, That no detail
shall be made under the provisions of this act unless the
officers to be detailed are willing to accept such position
without compensation from the Government other than
their retired pay. Sec. 2, ibid.
1292. The Secretary of War is authorized to issue at his JJSfete! °rd"
discretion, and under proper regulations to be prescribed |5CC' 3> ***•
by him, out of ordnance and ordnance stores belonging to
the Government, and which can be spared for that pur-
pose, upon the approval of the governors of the respective
States, such number of the same as may be required for
military instruction and practice by such school, and the
Secretary shall require a bond in each case, for double
the value of the property, for the care and safe keeping
thereof, and for the return of the same when required.1
Sec. 3, ibid.
1293. Any retired officer ma}7, on his own application, be f^^n " ^JJl
detailed to serve as professor in any college. But while so lej®-ly 16 1870 c
serving, such officer shall be allowed no additional com-^J: ^'27 ^s??'
r»An<5fltirm c. 69, v. 19, p! 242. '
Sec.l26d,R.S.
1294. Upon the application of any college, university, Detail of re-
,J , J ! tired officers.
or institution ot learning incorporated under the laws of May 4, isso, v.
any State within the United States, having capacity at the
same time to educate not less than one hundred and fifty
male students, the President may detail an officer of the
Army on the retired list to act as president, superintendent,
or professor thereof; and such officer may receive from the
institution to which he may be detailed the difference be-
tween his retired and full pay, and shall not receive any
additional pay or allowance from the United States.2
of May 4, 1880 (21 Stat. L., 113).
1295. Nothing in the act entitled uAn act to increase the
number of officers of the Army to be detailed to colleges," gJl?868 notlim'
approved November third, eighteen hundred and ninety-
three, shall be so construed as to prevent, limit, or restrict
the detail of retired officers of the Army at institutions of
learning under the provisions of section twelve hundred
and sixty, Revised Statutes, and the act making appropria-
1 Section 4 of the above enactment contained a clause giving immediate effect to
the statute. For other statutes regulating the detail of retired officers at colleges see
the paragraphs next following.
2 Officers of the Army on the retired list who, upon their own application, are
detailed to educational institutions in accordance with the provisions of the act of
November 3, 1893 (28 Stat. L., 7), are entitled to the full pay of their rank. VI
Compt. Dec., 120.
488 MILITARY LAWS OF THE UNITED
tions for the support of the Army, and so forth, approved
May fourth, eighteen hundred and eighty, nor to forbid the
issues of ord- issue of ordnance and ordnance stores, as provided in the
nance, etc.
act approved September twenty-sixth, eighteen hundred
and eightj^-eight, amending section twelve. hundred and
28Apg235 1894' v> twenty -five, Revised Statutes, to the institutions at which
retired officers may be so detailed; and said act of Novem-
ber third, eighteen hundred and ninety-three, and said act of
May fourth., eighteen hundred and eighty, shall not be con-
in~ strued to allow the full pay of their rank to retired officers
detailed under said section twelve hundred and sixty, Re-
vised Statutes, and said act of May fourth, eighteen hun-
dred and eighty. 1 Act of August 6, 1894 (88 Stat. L. , 235).
ISSUES OF ORDNANCE.
1296< The Secretary of War is authorized to issue, at
25SpP49126'188'v> his discretion and under proper regulations to be prescribed
by him, out of ordnance and ordnance stores belonging to
the Government, and which can be spared for that purpose,
such number of the same as may appear to be required for
military instruction and practice by the students of any
college or university under the provisions of this section,
and the Secretary shall require a bond in each case, in
double the value of the property, for the care and safe
keeping thereof, and for the return of the same when
required: Provided, That nothing in this act shall be so
construed as to prevent the detail of officers of the Engi-
neer Corps of the Navy as professors in scientific schools
or colleges as now provided by act of Congress approved
February twenty -sixth, eighteen hundred and seventy-
nine, entitled "An act to promote a knowledge of steam
engineering and iron shipbuilding among the students of
scientific schools or colleges in the United States;'1 and the
Secretary of War is hereby authorized to issue ordnance
and ordnance stores belonging to the Government on the
terms and conditions hereinbefore provided to any college
or university at which a retired officer of the Army may
be assigned as provided by section twelve hundred and
sixty of the Revised Statutes.2 Act of September 26, 1888
(25 Stat. L.,491).
1 Officers of the Army on the retired list who, upon their own application, are
detailed to educational' institutions in accordance with the provisions of the act of
November 3, 1893 (28 Stat, L., 7), are entitled to the full pay of their rank. VI
Compt. Dec., 120.
2 This statute replaces section 1225, Kevised Statutes, as amended by the act of July
5, 1884, "saving always, however, all acts and things done under the said amended
section as heretofore existing."
MILITARY LAWS OF THE UNITED STATES. 489
RETIREMENT OF OFFICERS.1
Par. I Par.
1297. Forty years' service; thirty years'
service.
1298. Forty-five years' service, age 62.
1299. Retirement at 64 years of age.
1300. The same, the unlimited retired
list.
1301. The same, the limited retired list.
1302. The same, transfers to unlimited
list.
1303. Service for retirement.
1304. Heads of staff departments.
1305. Retirement for disability.
1297. When an officer has served forty consecutive years Retirement
•' ^ . upon officer's
as a commissioned officer, he shall, if he makes application own application
' r . after 40 years'
therefor to the President, be retired from active service and se™ce-3 l
placed upon the retired list. When an officer has been ^.Sju5i' '^ 12> 'P'
thirty years in the service, he may, upon his own applica- ^ 294,^88. 4*5, v!
tion, in the discretion of the President, be so retired, and sec.i243,R.s.
placed on the retired list.
1298. When any officer has served forty-five years as a di^tirement $
commissioned officer, or is sixty-two years old, he may
retired from active service at the discretion of the Presi-
dent. 200, s. 12, v. 12, p. 596. Sec. 1244,
1299. On and after the passage of this act when ' an
officer has served forty years either as an officer or soldier ^rement at ase
in the regular or volunteer service, or both, he shall, if he 2/5*117 ' 1882> v>
make application therefor to the President, be retired from
active service and placed on the retired list, and, when an
officer is sixty-four years of age, he shall be retired from
active service and placed on the retired list: Provided,
further, That the General of the Army, when retired, shall
be retired without reduction in his current pay and allow-
ances; and no act now in force shall be so construed as to
limit or restrict the retirement of officers as herein pro-
vided for.2 Act of June 30, 1882 (22 Stat. L., 117).
1300. Nothing contained in the act making appropria- 1. unlimited re-
tions for the support of the Army for the fiscal year ^Mar^. 1883« v-
ending June thirtieth, eighteen hundred and eighty three,
approved June thirtieth, eighteen hundred and eighty-two,
shall be so construed as to prevent, limit, or restrict retire-
ments from active service in the Arm3r, as authorized by
law in force at the date of the approval of said act, retire-
ments under the provisions of said act of June thirtieth,
eighteen hundred and eighty-two, being in addition to
those theretofore authorized by law.2 Act of March 3,
1883(22 Stat. Z., 457).
lFor statutes establishing the limited retired list see paragraph 1301, post. For
statutes creating the unlimited retired list see paragraphs 1299 and 1300, post.
2 These statutes created the unlimited retired list.
490 MILITARY LAWS OF THE UNITED STATES.
Retired list. 1301. The whole number of officers of the Army on the
16, vg'i2, p. 289'; retired list shall not at any time exceed three hundred and
July 15, 1870, s. 5, _ .. J
v. 16, p. 317; June fifty, and any less number to be allowed thereon may be
P. 150;' Feb. 16, fixed by the President in his discretion. l Act of February
S^, 1891 (26 Stat. Z., 763).
1302' When officers who have been placed on the lim-
l]\l ^e(^ retired list as established by section seven, chapter
i89i, v. 26, p. 763. ^wo hundred and sixty -three, page one hundred and fifty,
volume twenty, United States Statutes at Large, shall
have attained the age of sixty-four years they shall be
transferred from said limited retired list to the unlimited
list of officers retired by operation of law because of hav-
de ^n^ ^teined sa^ a£e °^ sixty-four years. And the limited
creased. retired list shall hereafter consist of three hundred and
Proviso. fifty instead of four hundred, as now fixed by law: Pro-
vided, That officers who have been placed on the retired
list by special authority of Congress shall not form part
special retire- of the limited retired list established by this act. Act of
ments. ^ **
February 16, 1891 (26 Stat. Z., 763).
service count- 1303. On and after the passage of this act, all officers of
ed in retirement,
etc. the Army of the United States who have served as officers
June 18, 1878, s. . J .
7, v. 20, p. 150. m the volunteer forces during the war of the rebellion, or
as enlisted men in the armies of the United States, regu-
lar or volunteer, shall be, and are hereby, credited with
the full time they may have served as such officers and as
such enlisted men in computing their service for longevity
pay and retirement. Sec. 7, -act of June 18, 1878 (20 Stat.
Z., 150).
Head of a staff 1304. Any officer now holding office in any corps or de-
deFeb!™?°9bi, s. partment who shall hereafter serve as chief of a staff corps
26, v. si, p. 755'. or department and shall subsequently be retired, shall be
retired with the rank, pay, and allowances authorized by
law for the retirement of such corps or department chief.
Sec. 26, act of February 2, 1901 (31 Stat. Z., 755).
Retirement for 1305. When any officer has become incapable of per-
diAugU3fi86i, c. forming the duties of his office, he shall be either retired
m8' 16>v' 12>p>from active service, or wholly retired from the service,
sec. 1245, B.S. ^y ^he President, as hereinafter provided.
1 The limited retired list was established by section 16, of the act of August 3,
1861, 12 Stat. L., 289, which provided that the number of officers retired in accord-
ance with the authority conferred by the act should not, at any time, exceed 7
per cent of the whole number of offices of the Army as fixed by law. By section 5,
of the act of July 15, 1870, 16 Stat. L., 317, sec, 1258, Rev. Stat., the number of
officers to be borne upon the retired list was to be determined by the President, in
his discretion, but was not to exceed 300. By section 7, of the act of July
17, 1878, 20 Stat. L., 150, the number of retired officers was increased to 400. By
the act of February 16, 1891, 26 Stat. L., 763, the number was reduced and fixed
at 350, the number now authorized by law. For statutes in relation to the retire-
ment of officers found physically disqualified for promotion by boards of examina-
tion see paragraphs 1274 and 1275, ante.
MILITARY LAWS OF THE UNITED STATES.
491
RETIRING BOARDS — RETIRED OFFICERS.
Par.
1306. Composition of board.
1307. Oath of members.
1308. Powers and duties.
1309. Findings.
1310. Revision by President.
1311. Disability incident to service.
1312. Same not incident to service.
1313. Officer entitled to hearing.
1314, 1315. Retirement on actual rank.
1316. Pav of retired officers.
Par.
1317. Status of retired officers.
1318. Vacancies caused by retirement.
1319. Rights and liabilities.
1320. Assignment to Soldiers' Home.
1321. Eligibility to office.
1322. 'Duty in time of war.
1323. Adjutant-General to militia of Dis-
trict of Columbia.
1324. Holding office, restriction.
1325. Clerks to retired officers prohibited.
1306. The Secretary of War, under the direction of
President, shall, from time to time, assemble an Army retir- 42Agui73v18i2' p'
ing board, consisting of not more than nine nor less than 28|ec 1246 K s
five officers, two-fifths of whom shall be selected from the
Medical Corps. The board, excepting the officer selected
from the Medical Corps, shall be composed, as far as may
be, of seniors in rank to the officer whose disability is
inquired of.
1307. The members of said board shall be sworn in every oath of mem-
case to discharge their duties honestly and impartially. Aug. 3, isei, c.
1308. A retiring board may inquire into and determine 290.
the facts touching the nature and occasion of the disability Powers' and
of any officer who appears to be incapable of performing Aug! 3, isei, c,
the duties of his office, and shall have such powers of a 296. '
,. , ... Sec. 1248,B.S.
court-martial and of a court of inquiry as may be neces-
sary for that purpose.1
1309. When the board finds an officer incapacitated for
active service, it shall also find and report the cause which,
in its judgment, has produced his incapacity, and whether
such cause is an incident of service.2
1310. The proceedings and decision of the board shall be the
transmitted to the Secretary of War, and shall be laid by
^idi3ngi86i c
^s. 17, v. 12, p.
sec.i2*9,R.s.
by
1 This provision does not authorize a retiring board to entertain a charge of a mili-
tary offense, as such, or to try an officer. Dig. Opin. J. A. G., par. 2192. The inves-
tigation of a retiring board is not affected by any limitation as to time, as is that of
a court-martial. Such a board may therefore inquire into the matter of a disability,
however long since it may have originated. Ibid., par. 2193.
2 Held that the law (sees. 1248 and 1249, Rev. Stats. ) contemplated an existing and
not a purely prospective and contingent incapacity; and that an inquiry into an
officer's general efficiency could be pertinent only in so far as it could be regarded as
going to show that his inefficiency, if found, was the result of an impairment of
health. Ibid., par. 2204.
Held that the cause of incapacity intended in this section was a physical cause;
that moral obliquity was not had in view; and that the matter of the financial integ-
rity of the officer was beyond the jurisdiction or the board. Ibid., par. 2203. The
incapacity may result from habitual drunkenness. Ibid., par. 2196.
492 MILITARY LAWS OF THE UNITED STATES.
before the President for his approval or disapproval
r(lers in the case.1
1311- When a retiring board finds that an officer is inca-
2*see.i25o,R.s. and °r(lers in the case.
42fsUT?f v!8i2i p.' pacitated for active service, and that his incapacity is the
2^'ec.i26i,R.s. resu^ °f an incident of service, and such decision is
approved by the President, said officer shall be retired
from active service and placed on the list of retired officers.
inSSttoVr?- 1312> When the board finds that an officer is incapacitated
iCAug- 3, i86i, c. f°r actiye service, and that his incapacity is not the result
42^s. 17, v. 12, p. Of anv incident of service, and its decision is approved by
sec. i252,R.s. the President,1 the officer shall be retired from active serv-
ice, or wholly retired from the service, as the President
may determine. The names of officers wholly retired from
the service shall be omitted from the Army Register.2
tiSuo Shearing" 1313. Except in cases where an officer may be retired by
^Aug.^1861, c. the President upon his own application, or by reason of
^ec 1253 K s ^s having served forty-five years, or of his being sixty-
two years old, no officer shall be retired from active
service, nor shall an officer, in any case, be wholly retired
from the service, without a full and fair hearing before an
Army retiring board, if, upon due summons, he demands it.3
xThe finding of a retiring board under sec. 1251 or sec. 1252, Rev. Stats., is in the
nature of a recommendation, and till it is " approved by the President" no retire-
ment can be ordered thereupon. Ibid., par. 2194.
The finding of a retiring board, approved by the President, is conclusive as to the
facts. The board finds the facts and the President approves or disapproves the find-
ing, but the law does not empower him to modify the finding or to substitute a dif-
ferent one. There is here a judicial power vested in the two. and not in the Presi-
dent acting singly, and when the power has once been fully exercised it is exhausted
as to the case. Dig. Opin. J. A. G., par. 2206; U. S. r. Burchard, 125 U. S., 179;
U. S. v. Miller, 19 Ct. Cls., 338.
When the President has once acted upon the findings of a retiring board his power
over the case is exhausted and his subsequent orders in respect to such officer are
void for want of authority. XIX Opin. Att. Gen., 202.
2 To be " wholly retired," in accordance with the terms of this section, is to be put
out of the Army and out of office. An officer wholly retired becomes a civilian, and
can be readmitted to the service only by a new appointment. Dig. Opin. J. A. G.,
666, par. 9; Miller v. U. S., 19 Ct. Cls., 338.
3 The provision of this section that an officer shall not be " wholly retired from the
service without a full and fair hearing before an Army retiring board if, upon due
summons, he demands it," may be said to entitle him to appear before the board
(with counsel, if desired), and to introduce testimony of his own, to cross-examine
the witnesses examined by the board, including the medical members of the board
who may have taken part in the medical examination, and have stated, or reported
to the board, the result of the same. If the officer does not elect to appear before
the board when summoned, he waives the right to a hearing, and can not properly
take exception to a conclusion arrived at in his absence. Dig. Opin. J. A. G., par.
2197. When the President approves and acts upon the report of a retiring board he
thereby determines that the officer has had a full and fair hearing. Miller v. U. S.,
19 Ct. Cls. 338. But see XVI Att. Gen. Opin., 20.
An officer, on being wholly retired, becomes a civilian, and can be readmitted to
the service only by a new appointment. But he can not be appointed at once to the
retired list. A civilian can not be appointed as a retired officer. He must first be
appointed an officer on the active list, of a certain rank. None but a commissioned
officer on the active list of the Army can be placed on the retired list. Dig. Opin.
J. A. Gen., 666, par. 11; XIX Opin. Att. Gen., 506.
MILITARY LAWS OF THE- UNITED STATES. 493
1314. Officers hereafter retired from active service shall
be retired upon the actual rank held by them at the date v 3™**
of retirement. 3> 1875' v- 18' p- 512- '8ei-
1315. That all officers of the Army who have been here-
tofore retired by reason of disability arising from wounds
received in action shall be considered as retired upon
actual rank held by them, whether in the regular or volun-
teer service, at the time when such wound was received,
and shall be borne on the retired list and receive pay here-
after accordingly ; and this section shall be taken and con-
strued to include those now borne on the retired list placed
upon it on account of wounds received in action: Provided,
That no part of the foregoing act shall apply to those offi-
cers who had been in service as commissioned officers
twenty -five years at the date of their retirement; nor to
those retired officers who had lost an arm or leg, or has
an arm or leg permanently disabled by reason of resection,
on account of wounds, or both eyes by reason of wounds
received in battle; and every such officer now borne on
the retired list shall be continued thereon notwithstanding
the provisions of section two chapter thirty-eight act of
March thirty, eighteen hundred and sixty-eight; and be it
also provided^ that no retired officer shall be affected by
this act, who has been retired or may hereafter be retired
on the rank held by him at the time of his retirement.1
Sec. 2, act of March 3, 1875 (18 Stat. Z., 512).
PAY OF RETIRED OFFICERS.
1316. Officers retired from active service shall receive 0^T^ retired
seventy -five per centum of the pay of the rank upon which Sec- 1274, R.S.
they were retired.2
MISCELLANEOUS PROVISIONS.
1317. Officers retired from active service shall be with-
drawn from command and from the line of promotion. 42A?gii SML' p
. ' 289; July 17, 1862, c. 200, s. 12, v. 12, p. 596. Seci 1255, R. S.'
1318. When any officer in the line of promotion is retired ca^| a gyc *££
from active service, the next officer in rank shall be .^ c
moted to his place, according to the established rules of ^s-16''v-12' p
the service; and the same rule of promotion shall be ap- sec.i257,R.s.
plied, successively, to the vacancies consequent upon such
retirement.
1 The act of March 3, 1875, should be construed to have a prospective effect only.
XIX Opin. Att. Gen., 610.
2 The pay of retired officers is a matter within the control of Congress, and so is
their rank. Wood v. U. S., 15 Ct. Cls., 151, and 107 U. S., 414. Officers retired
from active service are retired " upon the actual rank held by them at the date of
retirement." Kemey v. U. S., 33 Ct. Cls., 218.
494 MILITARY LAWS OF THE UNITED STATES.
bmtfe1? and lia" 1319- Officers retired from active service shall be entitled
42AsU?83'v18i2' p.' to wear the uniform of the rank on which they may be
^ec.iase^.s. 1>etired. They shall continue to be borne on the Army
Register, and shall be subject to the rules and articles of
war, and to trial by general court-martial for any breach
thereof. l
di^S&oSSej? 1320' Retired officers of the Army may be assigned to
Hjane>2i 1870 c ^uty a^ ^he Soldiers' Home, upon a selection by the com-
A Ve Vi8\o %S; m*ss*oners °^ ^hat ms^itution, approved by the Secretary
F2ebV'276'i87737c: °^ War; an(^ a retired officer shall not be assignable to any
69sec ^fij^.'s other duty: Provided, That they receive from the Govern-
ment only the pay and emoluments allowed by law to
retired officers.2
civSeoScehia?y 1321i ^° Per8On belonging to the Army or Navy shall
TeMar°3y'i883 v ^e elected to or hold any civil office or appointment in any
^sec i6860 B s Territory, except officers of the Army on the retired list.3
1322> In time of war retired officers of the Army may,
inMir?e90fisao'« in the discretion of the President, be employed on active
Mar. z, loyy, s. A »/
7, v. so, p. 979. duty, other than in the command of troops, and when so
:A retired officer is subject to trial by court-martial, and a court-martial has juris-
diction of offenses committed after the officer was retired. Eunkle v. U. S., 19 Ct.
Cls., 396.
An officer on the retired list, being as much a part of the Army as any officer on
the active list, would be subject to trial by general court-martial independently of
the provision, specifically so subjecting him, of section 1256, Revised Statutes. Dig.
Opin. J. A. G., par. 2200.
A retired officer, upon conviction, may be sentenced similarly to an officer on the
active list, except that the punishments of suspension and loss of files or relative rank
are not appropriate to the status of a retired officer. Ibid., note 2.
2 A retired Army officer is not prohibited by law from holding office in an Execu-
tive Department, nor from receiving the salary thereof in addition to his retired pay.
Collins v, U. S., 15 Ct. Cls. 22; Meigs v. U. S., 19 Ct. Cls., 497. A retired officer may
be employed by the War Department. Yates v. U. S., 25 Ct. Cls., 296. Retired offi-
cers, as such, do not hold public office. They are in fact pensioners. The position
and pay given them constitute a form of pension. They exercise no functions and
receive no emoluments of office, but are pensioned for past faithful services or disa-
bilities contracted in the line of duty. Their condition and public office have no
characteristics in common. Dig. Opin. J. A. G., par. 2209. See in this connection
the act of July 31, 1894 (28 Stat. L., 205), which permits retired officers to hold office
to which they have been elected by the people or appointed by the President with the
advice and consent of the Senate. See also section 7 of the act of June 3, 1896 (29
Stat. L., 235), which contains the requirement " that section 2 of the act of July 31,
1894 (28 Stat. L., 205), shall not be so construed as to prevent the employment of any
retired officer of the Army or Navy to do work under the direction of the Chief of
Engineers of the United States Army in connection with the improvement of rivers
and harbors of the United States, or the payment by the proper officer of the Treas-
ury of any amounts agreed upon as compensation for such employment." This pro-
vision operates to exempt from the terms of the act of July 31, 1894 (sec. 1763, R. S. ),
all retired officers of the Army or Navy who may be employed by the Engineer
Department upon works of river and harbor improvement.
A retired officer of the Army " holds a lucrative office," and so is ineligible, under
the constitution of Texas, to hold civil office in that State. State v. DeGress, 53
Texas, 387. See, also, Hill v. Territory, 2 Wash., 147.
3 A retired officer of the Army is not ineligible to hold an appointment to a civil
office. XIX Opin. Att. Gen., 283; XV ibid., 306; Meigs v. U. S., 19 Ct, Cls. 497;
Converses. U. S., 21 How., 464; U. S. v. Brindle, 110 U. S., 688; U. S. v. Saunders,
120 U. S., 126.
MILITARY LAWS OF THE UNITED STATES. 495
employed they shall receive the full pay and allowances of
their grades. Sec. 7, act of March 2, 1899 (30 Stat. L.,
979).
1323. The President of the United States may detail as er£d S^SiSSt
Adjutant-General of the District of Columbia Militia any m££j'6, 1900, v.
retired officer of the Army who may be nominated to the31>p>
President by the Brigadier-General commanding the Dis-
trict of Columbia Militia, said retired officer while so
detailed to have the active service pay and allowances of
his rank in the Regular Army. Act of June 6, 1900 (31
Stat. L.,671).
1324. No person who holds an office the salary or annual
compensation attached to which amounts to the sum of two SrtiSSL *2>50°
thousand five hundred dollars shall be appointed to or hold
any other office to which compensation is attached unless
specially heretofore or hereafter specially authorized
thereto by law; but this shall not apply to retired officers
of the Army or Navy whenever they may be elected to
public office or whenever the President shall appoint them
to office, by and with the advice and consent of the Senate.
Sec. 2, act of July 31, 1894 (®$ Stat. Z., $08).
1325. Hereafter no allowance or compensation for clerks
or secretaries of officials of the United States retired from 1898 v
active service shall be authorized. Act of July 1, 1898 m •p-644..
(30 Stat. Z., 6U)-
RESIGNATIONS.
1326. Any officer who, having tendered his resignation,
quits his post or proper duties, without leave, and with War.
intent to remain permanently absent therefrom, prior to
due notice of the acceptance of the same, shall be deemed
and punished as a deserter.1 Forty -ninth Article of War.
JA valid resignation and an unconditional acceptance of it, accompanied by proper
notification of it, operate to remove an officer from the military service. Bennett v.
U. S., 19 Ct. Cls. 379. And a new appointment is required to restore him to the
office. XII Opin. Att. Gen. , 555. An immediate and unconditional resignation severs,
absolutely, an officer's connection with the Army. Turnley v. U. S., 24 Ct. Cls., 317.
It has been held by a United States court that "a civil officer has a right to resign
his office at pleasure, and it is not in the power of the Executive to compel him to
remain in office. " In a case of a military officer, however, this right is subject to cer-
tain restrictions growing out of the military status. Thus, while in time of peace, an
officer of the Army, in good standing, is in general entitled to tender and have accepted
his resignation, yet in time of war, or when grave embarrassment to the service or
prejudice to discipline may result from his leaving his duty, the acceptance of his resig-
nation may properly be refused. And so, where he has tendered his resignation while
under charges, and a failure of justice might result from allowing him to evade trial.
Dig. Opin. J. A. G., 662.
A military officer who has tendered his resignation, but who continues in service,
doing actual duty, is entitled to pay up to the time he is notified of the acceptance of
his resignation. Barger v. U. S., 6 Ct. Cls., 35; Dig. Opin. J. A. Gen., 662, 663.
A mere offer to resign or tender of resignation is revocable at any time before accept-
496 MILITARY LAWS OF THE UNITED STATES.
1327- AnJ officer of the ArmJ wh« accepts or holds any
laMar! so, 1868 c. appointment in the diplomatic or consular service of the
^Se^i2'28;&.fe^overnment shall ^e considered as having resigned his
place in the Army, and it shall be filled as a vacancy.1
DISMISSAL.
disRrSsStIonoffi- 1328- No officer of the Army who has been or may be
cejuiy 20, 1868, c. dismissed from the service by the sentence of a general
18|iJ.'i1|al>,'B?l. court-martial, formally approved by the proper reviewing
authority, shall ever be restored to the military service,
except by a reappointment confirmed by the Senate.2
ance. But after an acceptance, and before effect has been given to the same by notice,
the offer can not be withdrawn, or materially modified by the act of the officer alone,
but the consent of the appointing power is also necessary. Dig. Opin. J. A. G., 663.
A resignation to take effect at a future date may, with the consent of the appoint-
ing power, provided no new rights have intervened, be withdrawn before the time
when the resignation was to take effect, and the officer will continue to be an officer
de jure thereafter. 1 Compt. Dec., 8; Bunting v. Willis, 27 Gratt., 144; Biddle v. Wil-
lard, 10 Ind., 62; State v. Van Buskirk, 56 Mo., 17; People v. Porter, 6 CaL, 26. See,
also, Badgers U. S., 93 U. S., 599; U. S. v. Wright, 1 McLean, 509.
The acceptance of an officer's resignation becomes operative and severs him from
the military service upon his receiving either actual or constructive notice of such
acceptance. Dig. Opin. J. A. G., 663.
While a tender of his resignation by an insane officer is, in general, without legal
effect, and incapable of being legally accepted, yet where a resignation so tendered
was, in the absence, at the War Department, of any knowledge of his insanity, form-
ally accepted, held that the acceptance could not be legally revoked, and that the
appointment to the vacancy was valid and operative. Dig. Opin. J. A. G., 663.
When an officer tenders his resignation, and the question of his sanity is passed upon
by his commanding officer, and it is by him determined that he is of sane mind, a
court can not reexamine the question. Blake v. U. S., 13 Ct. Cls. 402.
Where an officer appointed during a recess of the Senate, after taking the oath of
office, and notifying the Department of his acceptance, is ordered to return the appoint-
ment, his obeying the order is not a resignation. O'Shea v. U. S., 28 Ct. Cls., 392.
An officer who places his conditional resignation in the hands of his commanding
officer, to be forwarded by that officer upon a breach of the said condition, of which
breach such commanding officer is to be the judge, and authorizes him to insert a date
in such resignation and to forward it for acceptance, is held to have made a valid
tender of his resignation, and, upon its acceptance by the President, such officer ceases
to be an officer of the Army. Mimmack v. U. S., 97 U. S., 426, 436; XII Opin. Att.
Gen., 555.
If an officer's connection with the service has been legally severed by resignation,
dismissal, or otherwise, he can again enter only by the appointment of the President,
with the consent of the Senate. Montgomery v. U. S., 19 Ct. Cls., 338; Miller v.
U. S., ibid., 338; Mimmack v. U. S., 97 U. S., 426; McElrath v. U. S., 102 U. S., 426;
Blake v. U. S., 103 U. S., 227; Keyes v. U. S., 109 U. S., 336, 339.
JThe act of March 30, 1868, 15 Stat. L., 58, which is embodied in section 1223 of
the Kevised Statutes, applied to officers on the retired as well as on the active list,
and it made the acceptance of the diplomatic vacate the military office eo instanti;
the vacancy thus created necessarily continuing until filled in the usual way. XIX
Opin. Att. Gen., 610.
2 Dismissal by Executive order is quite distinct from dismissal by sentence. The
latter is a punishment; the former is removal from office. The power to dismiss, which,
as being an incident to the power to appoint public officers, had been regarded since
1789 as vested in the President by the Constitution, was for the first time, by section
5 of the act of July 13, 1886 (reenacted in the second clause of the present ninety-
ninth article of war and in section 1229, Revised Statutes), expressly divested by
Congress, in so far as respects its exercise in time of peace. By the statute it is now
authorized only in time of war. Dig. Opin. J. A. G., par. 1203.
The practical results of this statute, in connection with other provisions of law
bearing upon the subject, are these: That in time of war the President may dismiss
MILITARY LAWS OF THE UNITED STATES. 497
1329. The President is authorized to drop from the rolls
of the Army for desertion any officer who is absent from
duty three months without leave; and no officer so dropped
shall be eligible for reappointment. And no officer in the ^J^y 13, isee,
military or naval service shall in time of peace be dis- ^^ 12^ B s
missed from service except upon and in pursuance of the
sentence of a court-martial to that effect, or in commuta-
tion thereof.1
1330. When any officer, dismissed by order of the Presi- m2Sf£y £^1
dent,2 makes, in writing, an application for trial, setting J2jd tjfaa,y de~
an officer from service at any moment and for any cause; that in time of peace he
may dismiss him for cause, with the cooperation of a court-martial; or remove him
without cause with the consent of the Senate. Street r. U. S., 24 Ct. Cls., 248;
Blake v. U. S., 103 U. S.. 227; McElrath r. U. S., 102 U. S., 426; Fletcher v. U. S.,
26 Ct. Cls., 541.
The President has the power to remove an officer of the Army by the appointment
of another in his place, by and with the advice and consent of the Senate, and such
power is not withdrawn by the provisions of section 5 of the act of July 13, 1866
(section 1229, Revised Statutes) , and this provision does not restrict the power
of the President, by and with the advice and consent of the Senate, to displace offi-
cers of the Army and Naw by the appointment of others in their places. Keyes r.
U. S., 109 U. S., 336, 339; 'Blake r. U. S., 103 U. S., 227; McElrath r. U. S., 103 U. S.
426; Mimmack r. U. S., 97 U. S., 426; U. S. r. Corson, 114 U.S., 619; Montgomery
v. U. S., 19 Ct, Cls., 370; Bonnett v. U. S., ibid., 379; Palen v. U. S., ibid., 389;
McBlairr. U. S., ibid., 528; Vanderslice r. LT. S., ibid., 480; XV Opin. Alt. Gen., 407.
lThe jurisdiction to find and determine the fact of desertion, under this section, is
vested in the President alone, and his decision thereon can not be reviewed by the
courts. Newton r. U. S., 18 Ct. Cls., 435. The discharge of an officer does not
relieve the Government from its obligations until he is notified of the fact and actu-
ally discharged from service. Gould r. U. S., 19 Ct. Cls., 593. A summary dis-
missal of an officer does not properly take effect until the order of dismissal or an
official copy of the same is delivered to him, or he is otherwise officially notified of
the fact of 'his dismissal. Dig. Opin. J. A. G., par. 1204. A dismissal of an officer
by Executive order does not operate to disqualify him for reappointment to military
office, or for appointment to civil office under the United States. Ibid, 370, par. 7.
2 Dismissal by Executive order is quite distinct from dismissal by sentence. The
latter is a piutith me ni: the former is removal from office. The power to dismiss, which,
as being an incident to the power to appoint public officers, had been regarded since
1789 as vested in the President by the Constitution, was, for the first time in 1866
( by the act of July 13th of that year, re-enacted in the second clause of the present
b9th Article of War and in sec. 1229, Revised Statutes), expressly divested by Con-
gress iti so i'ar as respects its exercise in time of peace. By the statute law it is now
authorized only in time of war. During the late war it was exercised in a great num-
ber of cases, sometimes for the purpose of summarily ridding the service of unworthy
officers, sometimes in the form of a discharge or muster out of officers whose services
were simply no longer required. The distinction between this species of dismissal
and dismissal by sentence is illustrated by the fact that the former has, with the sanc-
tion of legal authority, been repeatedly ordered in cases where a court-martial has
previously acquitted the officer of the very offenses on account of which the summary
action has been resorted to. Dig. Opin. J*. A. Gen., par. 1203. See also VII Opin. Att.
Gen., 251; Commonwealth r. Bussier, 5 Sergt. & Rawle, 461; Exparte Hennen, 13
Peters, 258, 259; United States r. Guthrie, 17 Howard, 307; IVOpins. of Attys.Gen.,
1,609-613; VI Id., 5-6; VII Id., 251; VIII Id., 230-232; XII Id., 424-426; Sergeant's
Const. Law, 373; 2 Story's Cons., § 1537, note; 1 Kent's Corns., 310; 2 Marshall's
Washington, 162.
The Executive, in summarily dismissing an officer, can not at the same time
deprive him of pay due. Nor can the right of an officer to his pay for any period
prior to a summary dismissal ordered in his case be divested by a dating back of the
order of ait-missal.* Such an order can not be made to relate back so as to uftVc-t the
status or rights of the officer as they existed before the date of the taking effect of
the dismissal. Dig. Opin. J. A. G., par. 1213.
22924—08 - 32
498
MILITARY LAWS OF THE UNITED STATES.
under oath, that he has been wrongfully dismissed,
President shall, as soon as the necessities of the service
PSec!'i28o,K.s. may Permrt, convene a court-martial, to try such officer on
the charges on which he shall have been dismissed. And
if a court-martial is not so convened within six months
from the presentation of such application for trial, or if
such court, being convened, does not award dismissal or
death as the punishment of such officer, the order of dis-
missal by the President shall be void.1
MISCELLANEOUS PROVISIONS RESPECTING COMMISSIONED OFFICERS.
Par.
1331. Officers not to be employed on civil
works, etc.
1332. Accepting civil office.
1333. Details as Indian agents.
Par.
1334. Discharge of supernumerary offi-
cers.
1335. Enlisted men not to be used as serv-
ants.
133L No officer of the ArmJ sha11 be employed on civil
s or internal improvements, or be allowed to engage
i9Fpb243.1877' v' in ^ne service of any incorporated company, or be employed
sec. 1224, K. s. as acting paymaster or disbursing agent of the Indian
Department, if such extra employment requires that he
shall be separated from his company, regiment, or corps,
or if it shall otherwise interfere with the performance of
the military duties proper. Act of February 27, 1877 (19
Stat. L., 243).
^This statute was held by the Attorney-General (XII Opins., 4) not to be unconsti-
tutional, in that it was not " obnoxious to the objection that it invades or frustrates
the power of the President to dismiss an officer." More serious objections to its
constitutionality are believed to be: 1, that it authorizes the subjecting to military
trial of a civilian; 2, that in restoring an officer to the Army it substitutes the action
of a court-martial for the appointing power of the President,
The statute does not indicate within what period after the dismissal the application
for a trial should be made. It can only be said that, in preferring it, due diligence
should be exercised— that it should be presented within a reasonable time. Held,
That a party who (without any sufficient excuse) delayed for nine years to apply
for a trial under the statute might well be regarded as having waived his right
thereto. [IV Opin. Att. Gen., 170; V Ibid., 384.] It could scarcely have been con-
templated by Congress that a dismissed officer should be at liberty to defer his
application for a trial till the evidence on which he was dismissed or a material part
of the same had ceased to exist, and his restoration would thus be made certain.
Dig. Opin. J. A. G., par. 1219.
Though it may be sufficient that the application made under the statute should
state simply that the applicant has been "wrongfully" dismissed, the preferable
form would be for the applicant to set forth in what the alleged wrong consisted.
Ibid., par. 1220.
To take advantage of the benefit conferred by this section the officer must apply
for trial within a reasonable time after dismissal, or acquiescence will be presumed.
A delay of nine years in a particular case held to create such presumption of acquies-
cence. Newton r. U. S., 18 Ct. Cls., 435; Germaine v. U. S., 26 ibid., 383.
Where the President is authorized by law to reinstate a discharged army officer,
he may do so without the advice and consent of the Senate. Collins v. U. S., 15
Ct, Cls., 22. For a list of officers so reinstated see Collins Case, 14 Ct. Cls., 568, 571.
MILITARY LAWS OF THE UNITED STATES. 499
1332. No officer of the Army on the active list shall hold hof|f*f ^ ££
any civil office, whether by election or appointment, and ficj^ly 15 Ig70 c
every such officer who accepts or exercises the functions f^ s- 18> v- 16> p-
of a civil office shall thereby cease to be an officer of the Sec- 1222' B- s-
Army, and his commission shall be thereby vacated.1
1333. That from and after the passage of this act the Army officers
r to be detailed as
President shall detail officers of the United States Army indian^agen^s.^
to act as Indian agents at all agencies where vacancies '&, p. 120!
from any cause may hereafter occur, who, while acting as
such agents, shall be under the orders and direction of
the Secretary of the Interior, except at agencies where,
in the opinion of the President, the public service would
be better promoted by the appointment of a civilian.2 Act
of July IS, 1892 (27 Stat, Z.. 120).
1334. That any officer who is supernumerary to the per- suj>ernumer-
manent organization of the Army as provided by law may, on their own re-
* ~ ' quest, be dis-
at his own request, be honorably discharged from the charged with
J fe certain pay.
Army, and shall thereupon receive one year's pay for each22June3o,i882,v.
five years of his service, but no officer shall receive more
than three years' pay in all. Act of June 30, 1882 (22 Stat.
Z., 118).
1335. No officer shall use an enlisted man as a servant no^beusedas
in any case whatever. Juiy 15, i8?o, c. 294, s. 14, v. ie, p. 319. 8e|™.nil32, R.S.
TRAVEL PAY ON DISCHARGE.
1336. Hereafter when an officer shall be discharged from 0^erflon&yAil
the service, except by way of punishment for an offense, ch^Te'2 1901 \
he shall receive for travel allowances from the place of ^'P-902-
his discharge to the place of his residence at the time of
his appointment or to the place of his original muster into
the service four cents per mile from the place of his dis-
charge to the place of his enlistment, enrollment, or orig-
inal muster into the service.3 Act of March 2, 1901 (31
Stat. Z., 902).
1 Where an officer of the Army was tendered a place on a "board of experts"
created by a city ordinance to determine the most durable and best pavement for the
streets of a city, advised that, in view of the provisions of section 1222 of the Eevised
Statutes, the place be not accepted by the officer. XVIII Opin. Att. Gen., 11.
2 See, for other provisions of law respecting the detail of officers as Indian agents,
the chapters entitled THE INDIANS; INDIAN AGENTS; THE INDIAN COUNTRY. For
other enactments authorizing the employment of officers on the active list on civil
or nonmilitary duty, see sections 4653, 4664, and 4671, Revised Statutes, authorizing
the detail of officers on light-house duty; the act of July 31, 1882, 22 Stat. L., 181,
authorizing the detail of an officer for duty in connection with Indian education;
section 5 of the act of August 1, 1890, 26 ibid., 337, authorizing the detail of an
officer as a member of the Chickarnauga Park Commission; and the several statutes
authorizing college details, see paragraphs 1288 to 1295, ante.
3 For statutes and regulations regulating the payment of travel allowances on dis-
charge to officers and enlisted men see the chapter entitled THE PAY DEPARTMENT.
500 MILITARY LAWS OF THE UNITED STATES.
1337. Any officer or enlisted man in the service of the
United States who was discharged in the Philippine Islands
and there reentered the service through commission or
enlistment shall, when discharged, except by way of pun-
ishment for an offense, receive for travel allowances from
the place of his discharge to the place in the United States
of his last preceding appointment or enlistment, or to his
home if he was appointed or enlisted at a place other than
his home, four cents per mile. 1 Ibid.
/I?dtrave1' 1338. For sea travel on discharge actual expenses only
shall be paid to officers and transportation and subsistence
only shall be furnished to enlisted men.1 fbid.
DECEASED OFFICERS.
Effects of de- 1339. In case of the death of any officer, the maior of
ceased officers. . J J
125 Art. war. his regiment, or the officer doing the major's duty, or the
second officer in command at any post or garrison, as the
case may be, shall immediately secure all his effects then in
camp or quarters, and shall make, and transmit to the office
of the Department of War, an inventory thereof.2 One
hundred and twenty-fifth Article of War.
1For statutes and regulations regulating the payment of travel allowances on dis-
charge to officers and enlisted men see the chapter entitled THE PAY DEPARTMEN r.
2 The death of an officer, with place, cause, day, and hour, will be reported with-
out delay by his immediate commander direct to the Adjutant-General of the Army.
A duplicate of this report will be forwarded to department headquarters. When the
death occurs away from the officer's station, in hospital or on leave, the medical
officer, if one be present, or any officer having cognizance of the fact, will make the
report. Par. 93, A. R., 1901.
Inventories of the effects of deceased officers, as required by the One hundred and
twenty-fifth Article of War, will be transmitted to the Adjutant-General of the
Army. If legal representatives take possession of the effects, the fact will be stated
in the inventory. Par. 94, ibid.
If there be no legal representatives present to receive the effects, a list of them
will be sent to £he nearest relative of the deceased. At the end of two months, if
not called for, they will be sold at auction and accounted for as in the case of deceased
soldiers, except that swords, watches, trinkets, and similar articles will be labeled
with the name, rank, regiment, and date of death of the owner, and sent through the
Adjutant-General to the Auditor for the War Department for the benefit of the heirs.
Par. 96, ibid.
Where an officer dies who is responsible for public property or funds, their dispo-
tion is provided for by the following provisions of Army Regulations: "On the
death of an officer in charge of public property or funds, his commanding officer
will appoint a board of survey, which will inventory the same, and make the cus-
tomary returns therefor, stating accurately amounts and condition. These the com-
manding officer will forwrard to the chiefs ot the bureaus to which the property or
funds pertain, and he will designate an officer to take charge of such property or
funds until orders in the case are received from the proper authority." Par. 97, ibid.
FTXKRAL EXPENSES.
The annual acts of appropriation since that of June 12, 1858 (11 Stat. L., 333), have
contained a provision for the expenses of interment "of officers killed in action or
who die when on duty in the field or at military posts, or when on the frontiers, or
when traveling under orders." Act of February 12, 1895, 128 Stat. L., 659. For
MILITARY LAWS OF THE UNITED STATES. 501
1340. Officers charged with the care of the effects of
deceased officers or soldiers shall account for and deliver00™^ same.
the same, or the proceeds thereof, to the legal represent-
the act of March 3, 1899 (30 Stat. L., 1225), authorizing certain expenditures in con-
nection with the transportation and burial of the remains of officers who die in the
field or at military camps, or who are killed in action, or who die in the field at
places outside the limits of the United States, see paragraph 1417 post. See, also, the
acts of May 26, 1900 (31 Stat. L., 212), and March 3, 1901 (ibid., 1172).
The disposition of the remains of deceased officers and the payment of funeral
expenses are provided for in the following regulation: "The remains of officers killed
in action, or who die when on duty in the field or at military posts, or when travel-
ing under orders, will be decently inclosed in coffins, and unless claimed by relatives
or friends, will be transported by the Quartermaster's Department to the nearest
military post or national cemetery for burial. The expense of transporting the remains
is payable from the appropriation for Army transportation; other expenses of
burial are limited to $75. If buried at the place of death, the fact will be reported to
the Adjutant-General of the Army." Par. 85., A. R., 1895. (Par. 99, A. R, 1901.)
The expenses of burial of deceased officers other than transportation of the
remains, which under the law is payable from the appropriation for "Army trans-
portation," limited to $75 by paragraph 85 of the Regulations, and of enlisted men,
limited to $35 by paragraph" 162 of the Regulations, as amended by General Orders,
No. 141, September 12, 1898, from this office, will be limited to the cost of the coffin
and the reasonable and necessary expense of preparation of the remains for burial,
and will not include such items as: For guarding remains, expense of services of
clergyman or minister, music by band or choir, flowers, cost or hire of pall to be used
with horse, tombstone, crape or gloves for pallbearers, and expense of grave site
where the remains are sent home at the request of relatives. Decision Sec. War,
Aprils, 1900, Circular No. 9, A. G. 0., 1900.
There is no authority of law for the payment of mileage on account of the trans-
portation of the remains of a deceased officer of the Army. Such payment would be
illegal and could not properly be allowed by the accounting officers. Under section
2, act of July 21, 1894 (19 Stat. L., 100), mileage ceased to accrue at the point where,
and the time when, by reason of death, an officer ceases to be an officer of the Army.
There is nothing in section 1 of the act of September 19, 1890 (26 Stat. L., 456) , which
is in conflict with this view. 3 Compt. Dec., 209.
Held, that the regulation allowance for the expenses of the interment of an officer,
as fixed by paragraph 99, Army Regulations, 1901, was not payable in the case of an
officer who, at the time of his death, was on sick leave, this being not one of the
cases specified in the Army appropriation acts in which such allowance is authorized
to be paid. Dig. Opin. J. A. G., par. 1954. Similarly held in the case of an officer
who died at the Hot Springs, Ark., when not on duty but on leave of absence. Ibid.
Held, further, that, under the provisions on the subject of the Army appropriation
act of February 27, 1893, such expenses could not be allowed for the interment of an
officer dying at a military post unless he was on duty there at the time of his death,
and therefore could not" be legally allowed in the case of an officer who deceased
at a post where he was staying while on sick leave of absence from his station in
another military department. Ibid., par. 1955.
So held, under the act of March 3, 1899 (30 Stat. L., 1225), as to an officer who died
on furlough. VI, Compt. Dec., 444.
Held, that the fact that an officer had been interred at the post where he died did
not preclude the Secretary of War from having authorized his permanent interment
elsewhere, provided the entire expenses of burial did not exceed the maximum
amount of $75 allowed for such purposes by paragraph 99, Army Regulations of 1901.
Dig. Opin. J. A. G., par. 1955.
Paymasters, in making prepayments of salary to officers of the Army, are liable for
any portion unearned by the officer on account of death, or otherwise; also for any
final indebtedness of said officer to the Government, to the extent of said prepay-
ment. 3 Compt. Dec., 10.
Balances due from the United States to deceased persons are payable at the Treas-
ury, and not by disbursing officers. Second Compt., sec. 676; Scott Dig., 260.
A balance due to a deceased military officer upon his pay account becomes on his
death part of his personal estate, and may be set off by the accounting officers upon
an indebtedness due from him to the Government. Mumford v. U. S., 31 Ct. Cls.,
210. Money granted to a widow by statute cannot be set off against an indebtedness
due from her husband to the Government. Ibid.
502 MILITARY LAWS OF THE UNITED STATES.
atives of such deceased officers or soldiers. And no officer
so charged shall be permitted to quit the regiment or post
until he has deposited in the hands of the commanding
officer all the effects of such deceased officers or soldiers
not so accounted for and delivered. On< hundred and
twenty-seventh Article of War.
Reimbursement 1341. In all cases where they would have been lawful
of expense of bur- J
ialMa 26 1900 v c^mfl against the Government reimbursement may be
si, P. 212. ' made of expenses heretofore or hereafter incurred by
individuals of burial and transportation of remains of
officers, including acting assistant surgeons, not to exceed
what is now allowed in the cases of officers.1 Act of May
26, 1900 (31 Stat. L.,
act of March 2, 1901 (31 Stat. L.,905), contains a provision authorizing
expenses of interment of " officers killed in action or who die when on duty in the
field, or at military posts or on the frontiers, or when traveling under orders, and of
noncommissioned officers and soldiers."
CHAJPTER
BREVETS— MEDALS OF HONOR— CERTIFICATES OF
MERIT— FOREIGN DECORATIONS.
Par.
1342. Brevet rank.
1343. The same, when authorized.
1344, 1345. The same, date.
1346. Brevet rank, honorary.
1347. Assignment to duty.
1348. The same, when made.
1349. Uniform.
1350. To be addressed by actual rank.
1351. Uniform of highest volunteer rank.
Par.
1352, 1353. The same, regular rank.
1354. Foreign decorations.
1355. The same, restriction as to use.
1356, 1357. Medals of honor.
1358. Certificates of merit.
1359. The same, pay.
1360-1363. Corps badges, insignia of so-
cieties.
Brevets author-
ized for gal-
BEEVETS.
1342. The President, by and with the advice and consent J*ssrionSet com'
of the Senate, may in time of war confer commissions by
brevet upon commissioned officers of the Army for distin- fyfc^f?*
guished conduct and public service in presence of thejjj^jk.
enemy.1
1343. The President of the United States * * * is
hereby authorized and empowered, at his discretion, tocampaigns
nominate and, by and with the advice and consent of the 26Fpbi37' 1890>v'
Senate, to appoint to brevet rank all officers of the United
States Army now on the active or retired list who by
their department commander, and with the concurrence of
the Commanding General of the Army, have been or may
be recommended for gallant service in action against hos-
tile Indians since January first, eighteen hundred and
sixty-seven. Sec. 1, act of February £7, 1890 (26 Stat. L. ,
p. 13).
1344. Brevet commissions shall bear date from the par- Date of brevet
... . . , . . . commission.
ticular action or service for which the officers were bre- Mar. i, ISGQ, c.
52, s. 2,v. 15,p.281.
Vetted. Sec. 1210,R.S.
1345. Such brevet commissions as may be issued under
the provisions of this act shall bear date only from the *°£ate o£ heroic
passage of this act: Provided, however. That the date of seUcce2- ibid
1 Brevet rank can properly neither be conferred nor take effect except as an inci-
dent to full rank of a lower grade. Dig. Opin. J. A. G., par. 608.
503
504 MILITARY LAWS OF THE UNITED STATES.
the particular heroic act for which the officer is promoted
shall appear in his commission. Sec. 2, ibid.
beBsScetiyrhSno? 1346' Brevet rank sha11 *Q considered strictly honorary,
ailec 3 ibtd an(* S^a^ C0n^er no privilege of precedence or command
not already provided for in the statutes which embody the
rules and articles governing the Army of the United
States. Sec. 3, ibid.
sig^ment°f **' 1347> Officers maY be assigned to duty or command
64AsPi'v631p1427: according to their brevet rank by special assignment of the
^'iTpiis24' President 5 and brevet rank shall not entitle an officer to
sec.i2ii,B.s. precedence or command except when so assigned.1
dul^Ifc^when 13*8. Officers of the Army shall only be assigned to duty
mMar. 3, 1883, v. or command according to their brevet rank when actually
22, p. 457. 'engaged in hostilities.2 Act of March 3, 1883 (22 Stat.
Z., 457).
tuafrank1?^^ 1349' No officer shall be entitled, on account of having
juiy is, 1870, c. keen brevetted, to wear, while on duty, any uniform other
'
,
294, 8.16, . i6,'P tnan that of his actual rank.
Sec. 1212, B.S.
dreidbinordedrs 135°- No officer sha11 be addressed in orders or official
bytitie of actual communications by any title other than that of his actual
rank.
UNIFORM OF HIGHEST VOLUNTEER RANK.
135L A11 officers who have served during the rebellion as
teerh^k.olun" volunteers in the Army of the United States, and have been
299Usy348V18M'p' honorably mustered out of the volunteer service, shall be
^sec. 1226, B.S. entitled to bear the official title, and, upon occasions of
ceremony, to wear the uniform of the highest grade they
have held, by brevet or other commissions, in the volunteer
1 In view of the repeal by the act of March 1, 1869 (15 Stat. L., 318), of the old
sixty-first article of war (which did away also with the portion of paragraph 10 of
the Army Regulations of 1863 which was derived therefrom), an officer, except
where specially assigned to duty according to his brevet rank by the President, is
no longer entitled to precedence on courts-martial or otherwise by reason of his brevet
rank. Dig. Opin. J. A. G., par. 609. See also XVII, Opin. Att. Gen., 39.
Under section 1211, Revised Statutes, an officer may legally be assigned to duty
according to his brevet rank for a special command or duty, and in such case the
assignment will not be effective generally, but only for the purposes of such command
or duty and during its continuance. Thus held, that an officer assigned to duty
according to his brevet rank "while in command of" a certain department, could
legally exercise the authority and privileges of such rank only when holding such
command, and for the purposes of the same. Ibid., par. 611.
2 When an officer has been duly assigned to duty or command according to a cer-
tain brevet rank, that rank becomes his actual military rank for the period of the
assignment. He is empowered to exercise the authority which belongs to such rank
under the circumstances, to wear the uniform, and to be addressed by the title of
such rank, etc. Held, however, that a colonel, assigned to command according to a
brevet rank of general, was not entitled to the aids-de-camp of a general (major or
brigadier), but, as indicated in paragraph 40, Army Regulations, 1901, could be
"allowed" the same only "with the special sanction of the War Department" — in
other words, by the authority of the Secretary of War. Ibid., par. 612.
MILITARY LAWS OF THE UNITED STATES. 505
service. The highest volunteer rank which has been held
by officers of the Regular Army shall be entered, with their
names, respectively, upon the Army Register. But these
privileges shall not entitle any officer to command, pay, or
emoluments.
1352. All officers who have served during the rebellion as
officers of the Regular Army of the United States, and have £jf£est
been honorably discharged or resigned from the service, ^p^n 1897' v'
shall be entitled to wear the official title, and, upon occa-
sions of ceremony, to wear the uniform of the highest
grade they have held, by brevet or other commission, as
is now authorized for officers of volunteers by ^section
twelve hundred and twenty-six, Revised Statutes. Act of
February h 1897 (29 StaL L., 511}.
1353. All officers who have served during the war with Thesame. war
with Spain.
Spain, or since, as officers of the Regular or Volunteer g/^2' ^ s-
Army of the United States, and have been honorably dis-
charged from the service, by resignation or otherwise, shall
be entitled to bear the official title, and, upon occasions of
ceremony, to wear the uniform of the highest grade they
have held by brevet or other commission in the regular or
volunteer service. Sec. 34, act of February #, 1901 (31
Stat. L.,p. 757.)
FOREIGN DECORATIONS.
1354. That no decoration, or other thing the acceptance Foreign deco-
rations not to be
of which is authorized by this act, and no decoration here- worn.
. . J, Jan. 31,1881,s.
totore accepted, or which may hereafter be accepted, by 2, v. 21, p. so.
consent of Congress, by any officer of the United States,
from any foreign government, shall be publicly shown or
exposed upon the person of the officer so receiving the
same. Sec. 2, act of January 31, 1881 (21 Stat. L., 80).
1355. That hereafter any present, decoration, or other Decorations,
thing which shall be conferred or presented by any foreign dered.
government to any officer of the United States, civil, naval,
or military, shall be tendered through the Department of
State, and not to the individual in person, but such present,
decoration, or other thing shall not be delivered by the
Department of State unless so authorized by act of Con-
gress. Sec. 3, ibid.
MEDALS OF HONOR.
1356. That the President cause to be struck, f rom the Me d a 1 s of
dies recently prepared at the United States Mint for that Mar! 3, ises, s.
purpose, "medals of honor" additional to those authorized '
by the act (resolution) of July 12, 1862, and present the same
506
MILITARY LAWS OF THE UNITED STATES.
bon-
to such officers, noncommissioned officers, and privates as
have most distinguished, or may hereafter most distin-
guish themselves in action.1 Sec. 6, act of March 3, 1863.
1357. The Secretary of War • ' * * is hereby authorized
to issue to any person to whom a medal of honor has been
awarded, or may hereafter be awarded, under the provi-
sions of the joint resolution approved July twelfth, eighteen
hundred and sixty -two, and the act approved March third,
b-e^^een hundred and sixty-three, a rosette or knot to be
worn in lieu of the medal, and a ribbon to be worn with
the medal; said rosette, or knot, and ribbon to be each of
a pattern to be prescribed and established by the President
of the United States; and any appropriation that may here-
after be available for the contingent expenses of the War
Department is hereby made available for the purposes of
New ribbon, this act : Provided, That whenever a ribbon issued under
the provisions of this act shall have been lost, destroyed,
or rendered unfit for use, without fault or neglect on the
part of the person to whom it is issued, the Secretary of
War shall cause a new ribbon to be issued to such person
without charge therefor. Joint Resolution No. 51, May
2, 1896(29 Stat. L., 473).
CERTIFICATES OF MERIT.
Certificate
of
1353. When any enlisted man of the Army shall have
distinguished himself in the service the President may, at
the recommendation of the commanding officer of the
1This provision was not embraced in the Revised Statutes. Medals of honor will
be awarded by the President to officers and men who most distinguish themselves
in action. (Par. 177, A. R., 1895; see also G. 0. 42, A. G. 0., 1897, and G. 0. 135,
A. G. O., 1899.)
The original enactments of 1862 and 1863, providing for the award of medals of
honor, and appropriating moneys for the expenses of the same, evidently contem-
plated a personal presentation to the selected recipient. Such is also inferably the
design of the present Army Regulations, wherein (Art. XXV) the medal of honor
is assimilated to the certificate of merit, each being manifestly intended to honor
and distinguish the recipient in person. Held therefore that (except by special
authority of Congress) a medal of honor could not legally be awarded to the widow,
or a member of the family, of a deceased officer, on account of -distinguished serv-
ice in action performed by the latter during his lifetime. (Dig. Opin. J. A. G.,
par. 1655.)
Par. 175, A. R., 1901, like the provision upon which it is based, of the act of March
3, 1863, is deemed to contemplate, in a case of an award to an officer, that the person
shall be a commissioned officer of the Army at the time of the award. A contract or
acting assistant surgeon is not, and was not at any time, such a commissioned officer.
Held therefore that a medal of honor could not legally be awarded to a person for
alleged distinguished service rendered while serving in 'the field as an acting assist-
ant surgeon in 1864, who moreover had had no connection with the Army since
1865. (Ibid., par. 1656; see also XX Opin. Att. Gen., 421.)
MILITARY LAWS OF THE UNITED STATES. 507
regiment or the chief of the corps to which such enlisted 61Mgari73'v1849^'p.
man belongs, grant him a certificate of merit. l Act of Jffif ^ *• $£
March 29, 1892 (27 Stat. L., 12}. v ^ p 737; Mar ^ 1892> v 27> p> ^^SSiei !&
1359. A certificate of merit granted to an enlisted man |Sf2§6f B.S.
for distinguished service shall entitle him, from the date
of such service, to additional pay at the rate of two dol-
lars per month while he is in the military service, although
such service may not be continuous.1 Sec. 2, act of Feb- Vf!bp973791'8'2>
ruaiy 9, 1891 (26 Stat. Z., 737).
CORPS BADGES AND INSIGNIA OF SOCIETIES.
1360. All persons who have served as officers,
missioned officers, privates, or other enlisted men in the p^bic R5e's INO
Regular Army, volunteer or militia forces of the United 73^evc- ^ P?- 2^
States, during the war of the rebellion, and have been hon-
orably discharged from the service or still remain in the
same, shall be entitled to wear, on occasions of ceremony,
the distinctive Army badge ordered for or adopted by the
Army corps and division, respectively, in which they
served.
1361. That the distinctive badges adopted by military Mimwy soci-
. . , . . • <• ety kadg68 may
societies 01 men who served in tne armies and navies oi*>e worn by Army
and Navy.
the United States in the war of the Revolution, the war J. R. NO. 50,
SGD! 25 1890 v
of eighteen hundred and twelve, the Mexican war, and 26, p. 68i.
the war of the rebellion, respectively, may be worn upon
1 Held, under section 1216, Revised Statutes, as amended by the act o* February 9,
1891, as follows: 1. A certificate of merit may now be granted to "any enlisted man
of the Army," noncommissioned officer as well as private, (a) 2. It may be granted
for distinguished conduct prior to the date of the act of February 9, 1891, as well as
since. (6) 3. The grantee must belong to a regiment. 4. While the recommendation
of the regimental commander is necessary, this recommendation may be based upon
any fact or facts deemed by him to justify it, such as the recommendation of the
company commander or any other officer (whether of the regiment or not) cog-
nizant of the circumstances of the case, or upon any other authentic information
brought to his (the regimental commander's) knowledge. 5. That the declaration
of paragraph 197, Army Regulations, 1901, that the recommendation "must originate
with an eye witness," is an interpolation not autnorized nor called for by the original
N
Statutes, that the President was authorized to grant a certificate of merit only to a
soldier belonging at the time of the grant to a regiment of the Army; that he was
not empowered to grant such a certificate to a discharged soldier and civilian on
account of services rendered while he was a soldier. (c) Ibid., par. 667.
a In- Bell v. U. S., 28 Ct. Cls., 462, it was held that a soldier to whom, when a member of an infantry
regiment, had been granted a certificate of merit, was entitled to continue to receive the additional
pay after reenlisting in the "general messenger service."
6 See McNamara v. U. S., 28 Ct. Cls., 416, where it is held that the act of February 9, 1891, is retro-
active, and entitles the beneficiary to the additional pay from the date of the service for which the
certificate was awarded.
cSee, to a similar effect, the opinion of the Attorney-General in XVI Opins., 9; also the subsequent
G. 0. 28, Hdqrs. of Army, 1878.
508 MILITARY LAWS OF THE UNITED STATES.
all occasions of ceremony by officers and enlisted men of
the Army and Navy of the United States who are mem-
bers of said organizations in their own right. Joint reso-
lution No. 50, of September 25, 1890 (26 Stat. L., 681).
^Badge^of Reg 1362. That the distinctive badge adopted by the Regular
Navy union Army and Navy Union of the United States may be worn.
may be worn. .
j. R. NO. 26, m their own right, upon all public occasions ot ceremony
28, p. 583. by officers and enlisted men in the Army and Navy of the
United States who are members of said organization.
Joint resolution No. 26, of May 11, 1894 (®$ Stat. L., 583).
The same. 1363. The distinctive badges adopted by military socie-
spain.r h ties of men who served in the armies and navies of the
4iFvb3i2; p19758.s' United States during the Spanish- American war and the
incident insurrection in the Philippines may be worn,
upon all occasions of ceremony, by officers and men of the
Army and Navy of the United States who are members
of said organizations in their own right. Sec. 41, act of
February 2, 1901 (31 Stat. L., 758).
CHAPTER XXIX.
ENLISTED MEN.
Par.
1364-1375. Enlistment, reenlistmerit.
1376,1377. Transfers.
1378. Furloughs.
1379-1382. Retirement.
1383-1390. Discharge.
1391, 1392. Travel pay on discharge.
1393. Absence without leave.
1394, 1395. Desertion.
1396-1404. Statutory consequences of de-
sertion.
Par.
1405, 1406. Aiding, enticing, persuading
to desert.
1407-1410. Apprehension of deserters, re-
wards.
1411. Statute of limitation in desertion.
1412, 1413. Miscellaneous provisions.
1414, 1415. Deceased enlisted men.
1416-1418. Expenses of burial.
ENLISTMENT AND REENLISTMENT.
Par . i Par.
136 i, 1365. General qualifications, age. 1371.
1366. The same, citizenship. 1372.
1367. Enlistment of minors. 1373.
1368,1369. Prohibited enlistments. 1374.
1370. Term of enlistment. 1375.
Premium for recruits.
Fraudulent enlistment.
Reenlistment.
The same, pay.
Period for reenlistment extended.
1364. Recruits enlisting in the Army must be effective General quaii-
and able-bodied men, and between the ages of eighteen and Mar. ie, 1802, c.
9 s 11 v 2 t> 134'
thirty-five years, at the time of their enlistment.1 This Mar. 3', isi'5, c. 79,'
limitation as to age shall not apply to soldiers reenlisting. July 5, isss, c.
r J 5 162, s. 30, v. 5, p.
260; Feb. 13, 1862, c. 25, s. 2, v. 12, p. 339; June 21, 1862, Res. 37,
v.12, p. 620; July 17, 1862, c. 200, s. 21, v. 12, p. 597; Feb. 27, 1893,
v. 27, p. 486; Mar. 2, 1899, s. 4, v. 30, p. 978. Sec. 1116, B. S.
1365. The limits of age for original enlistments in the
Army shall be eighteen and thirty-five years. Sec. h
of March #, 1899 (30 Stat. Z., 978).
xThe requirements of section 1116, Revised Statutes, in respect to the limits of age
for recruits upon their original enlistment into the military service have been modified
by the act of February 27, 1893 (27 Stat. L., 486), which established the superior
limit at thirty years in time of peace, and by section 4 of the act of March 2, 18W
(30 Stat. L., 978), which fixes the limits of age for original enlistments at from eighteen
to thirty-five years.
Enlistment is a contract, but it is one of those contracts which changes the status,
and where that is changed no breach of contract destroys the new status or relieves
from the obligations which its existence imposes. * * * By enlistment the citizen
becomes a soldier. His relations to the State and the public are changed. He
acquires a new status, with correlative rights and duties, and although he may violate
his contract obligations, his status as a soldier is unchanged, He can not of hia own
509
510 MILITARY LAWS OF THE UNITED 8TATE8.
shipge> (>itizen" 1366. In time of peace no person (except an Indian) who
2 ^"^'p89^!8 n°t a citizen of the United States, or who has not made
vl&36 VOTS' s' 4' le£al declaration of his intention to become a citizen of the
United States, or who can not speak, read, and write the
English language, or who is over thirty-five }Tears of age,
shall be enlisted for the first enlistment in the Army.1
Sec. 4, act of March 8, 1899 (30 Stat. Z., 978}.
mSoSX*"1 1367. No person under the age of twenty -one years shall
162? sri,5v!8i772,'p! be enlisted or mustered into the military .service of the
Us'ec. 1 1 1 7. H.S. United States without the written consent of his parents
or guardians: Provided, That such minor has such parents
or guardians entitled to his custody and control.
bePeen?fstednot 1368. No minor under the age of sixteen years, no insane
Gs^G.'v^^k?; or intoxicated person, no deserter from the military service
237%. 45, v8i3, p.' of the United States, and no person who has been con-
c8™ ? is v if6?' victed of a felony shall be enlisted or mustered into the
oKfpS: military service.2
Sec.lll8,R.S.
volition throw off the garments he has once put on, nor can he, the State not objecting,
renounce his relations and destroy his status on the plea that, if he had disclosed
truthfully the facts, the other party, the State, would not have entered into the new
relations with him or permitted him to change his status. U. S. r. Grimley, 137
U. S., 147.
Our law not defining enlistment, nor designating what proceeding or proceedings
shall or may constitute an enlistment, it may be said, in general, that any act or acts
which indicate an undertaking, on the part of a person legally competent to do so, to
render military service to the United States for the term required by existing law,
and an acceptance of such service on the part of the Government, may ordinarily be
regarded as legal evidence of a contract of enlistment between the parties and as
equivalent to a formal agreement where no such agreement has been had. The forty-
seventh article of war practically makes the receipt of pay by a party as a soldier
evidence of an enlistment on his part, estopping him from denying his military
capacity when sought to be made amenable as a deserter. The continued rendering
of service which is accepted may constitute an enlistment. But enlistments in our
Army are now almost invariably evidenced by a formal writing and engagement
under oath. Dig. Opin. J. A. G., 384, par. 1. See also In re McDonald, 1 Lowell, 100.
An enlistment is the act of making a contract to serve the Government in a subor-
dinate capacity either in the Army or the Navy. Erichson v. Beach, 40 Conn., ?83.
An enlistment is not a contract only, but effects a change of status. In re Grimley,
137 U. S., 151. The statutes employ tKe term "enlist'' only with reference to con-
tracts with persons who enter the Army as privates, and to certain other classes of
men, like Indian scouts and hospital stewards, who rank like soldiers, and voluntarily
put themselves under military law. Babbitt v. U. S., 16 Ct. Cls., 214.
1 Any male citizen of the United States, or person who has legally declared his
intention to become acitizen, if above theage of twenty-one and under the age of thirty-
five years, able-bodied, free from disease, of good character and temperate habits,
may be enlisted under the restrictions contained in this article. In regard to age or
citizenship this regulation shall not apply to soldiers who have served honestly and
faithfully a previous enlistment in the Army. Par. 921, A. R., 1901. See also
circular of June 3, 1898, from the Adjutant-General's Office for qualifications for
volunteer recruits.
2 Sections 1116, 1117, and 1118, Revised Statutes, providing that deserters, convicted
felons, insane or intoxicated persons, and certain minors shall not be enlisted are
regarded as directory only, and not as making necessarily void such enlistments, but
as rendering them voidable merely, at the option of the Government. In cases of
such enlistments, except of course where the party, by reason of mental derangement
or drunkenness was without the legal capacity to contract, the Government may elect
to hold the soldier to service, subject to any application for discharge which may be
addressed by himself or his parent, etc., either to the Secretary of War or to a United
MILITARY LAWS OF THE * UNITED STATES. 511
1369. Every officer who knowingly enlists or musters
into the military service any minor over the age of sixteen edg Art War
[eighteen] years without the written consent of his parents
or guardians, or any minor under the age of sixteen years,
or any insane or intoxicated persons, or any deserter from
the military or naval service of the United States, or any
person who has been convicted of an}T infamous criminal
offense shall, upon conviction, be dismissed from the serv-
ice, or suffer such other punishment as a court-martial may
direct. Third Article of War. Sec. 4, act of March 8,
1899 (30 Stat. Z., 978).
1370. That hereafter all enlistments in the Army shall m*$** c
be for the term of three years, and no soldier shall be fo?urae enan°snt-
again enlisted in the Army whose service during his last m|ec! 2, Aug. i,
preceding term of enlistment has not been honest and 1894> v- 28) PI 216*
faithful.1
1371. A premium of two dollars shall be paid to any cit- reSium for
izen, noncommissioned officer, or soldier for each accepted R^gun3e7 ^'i^p'
recruit he may bring to a recruiting rendezvous.2 62s'ec. ii2o,R.s.
1372. Fraudulent enlistment, and the receipt of any pay
or allowance thereunder, is hereby declared a military
offense and made punishable by court-martial, under the
sixty-second article of war. Sec. 3, act of July 27, 1892
(27 Stat. L.,278}.
REENLISTMENT.
1373. All enlisted men mentioned in section twelve hun-
dred and eighty who, having been honorably discharged,
have reenlisted or shall reenlist within three months
States court. Dig. Opin. J. A. G., 385, par. 3. See, also, U. S. r. Grimley, 137 U. S.,
147, cited in note to paragraph 1364, ante.
The enlistment contract of a minor is void when the recruit is under 16, with or
without the consent of the parent. In re Lawler, 40 F. R., 233. It is not void, but
voidable only, as to minors between 16 and 21. U. S. v. Morrissey, 137 U. S., 157.
It is not voidable at the instance of the minor. Ibid. It is voidable at the instance
of the parent or guardian. Com. v. Blake, 8 Phil., 523; Turners. Wright, 5 ibid.,
296; Menges v. Camac., 1 Serg. and R., 87; Henderson r. Wright, ibid., 299; Seavey
v. Seymour, 3 Cliff., 439; In re Cosenow, 37 F. R., 668; In re Hearn, 32 ibid., 141;
In re Davison, 21 ibid., 618; U. S. v. Wagner, 24 ibid., 135; In re Dohrendprf, 40
F. R., 148; In re Spencer, ibid., 149; In re Lawler, ibid., 233; In re Wall, 8 ibid., 85.
A minor's contract of enlistment is voidable, not void, and is not so voidable at the
instance of the minor. If, after enlistment, he commits an offense, is actually arrested,
and in course of trial before the contract is duly avoided, he may be tried and punished.
In re Wall., 8 Fed. Rep., 85; see also Barrett v. Hopkins, 7 ibid., 312.
1 The contract of enlistment is an entirety. If service for any portion of the time
is criminally omitted the pay and allowances for faithful services are not earned.
Lander v. U. S., 92 U. S., 77.
As to what constitutes faithful service within the meaning of this statute, see note
to paragraph 1373, post. This section operates to repeal section 1119, Revised Statutes,
and section 2 of the act of June 16, 1890 (26 Stat. L., 187) , which fixed the term of
enlistment in the Army at five years.
2 This statute is practically obsolete. It was last applied during the rebellion of
J 861-1 865 against the United States.
Additional
512 MILITARY LAWS "OF THE UNITED STATES.
thereafter, shall after five years' service, including their
firs't enlistment, be paid at the rate allowed in said section
to those serving in the fifth year of their first enlistment.1
1374 Every soldier who? having been honorably dis-
i894,°v 328Ap?2i6: charged, reenlists within three months thereafter, shall
sec. I-.'SI.K.S. ^ f urther entitled after five }^ears service, including his
first enlistment, to receive for the period of five years
next thereafter two dollars per month in addition to the
ordinary pay of his grade; and for each successive period
of five years of service so long as he shall remain continu-
ously in the Army a further sum of one dollar per month.
The past continuous service of soldiers now in the Army
shall be taken into account and shall entitle such soldier
to additional pay according to this rule; but services ren-
dered prior to August fourth, eighteen hundred and fifty-
four, shall in no case be accounted as more than one
enlistment. l
tended1 SAifree 1375. That the period within which soldiers may reenlist
msech3, Aug. i, with the benefits conferred by sections twelve hundred and
1894, v. 28, p. 216. eighty-two and twelve hundred and eighty-four of the
Revised Statutes, be, and the same is hereby, extended to
three months; and hereafter every enlisted man in the
Army, * * * shall be entitled to all the benefits con-
ferred by sections twelve hundred and eighty-one and
twelve hundred and eighty-two of the Revised Statutes.
Provided, That to entitle them to the additional pay
authorized by section twelve hundred and eighty-one, for
men serving in the third, fourth, and fifth years, the serv-
lThe additional pay given to soldiers by this section does not depend upon mere
length of service, but upon two other conditions — an honorable discharge and a vol-
untary reenlistment. Webb r. U. S., 23 Ct. Cls., 58. It is intended, primarily, to be
an inducement to the prompt reenlistment of an honorably discharged soldier, and
it can be earned in no other way. Ibid.
The act of June 16, 1890 (26 Stat. L., 157), contained the provision "that the Sec-
retary of War shall determine what misconduct shall constitute a failure to render
honest and faithful service within the meaning of this act. But no soldier who has
deserted at anytime during the term of an enlistment shall be deemed to have served
such term honestly and faithfully." Under the authority conferred by this statute
the Secretary of War has decided that in the following cases there has been a failure
to render honest and faithful service:
(1) Desertion.
(2) When the soldier is in confinement under a general court-martial sentence
expressly imposing imprisonment until or beyond the expiration of his term; when
discharged under sentence of general court-martial; when discharged by order from
the War Department specifying forfeiture, or because of imprisonment by the civil
authority.
(3) When the soldier is discharged for minority concealed at enlistment, or for other
cause involving fraud in enlistment, or for disability caused by his misconduct.
(4) Upon the approved finding of a board of officers, called under paragraph 148,
that the soldier has not served honestly and faithfully to the date of discharge.
The cause of forfeiture will be stated on the muster and pay rolls and on the final
statements of the soldier.
MILITARY LAWS OF THE UNITED STATES. 513
ice must have been continuous within the meaning of this
section.1 Sec. 3, act of August 1, 1894 (28 Stat. Z., 216)
TRANSFER OF ENLISTED MEN.2
1376. Any person enlisted in the military service of the
United States may, on application to the Navy Depart-
ment, approved by the President, be transferred to the ™fc s-" 1>'v- 13- P-
Navy or Marine Corps, to serve therein the residue of his See.U2i,B.s.
term of enlistment, subject to the laws and regulations for
the government of the Navy. But such transfer shall not
release him from any indebtedness to the Government,
nor, without the consent of the President, from any pen-
alty incurred for a breach of military law.
1377. Any enlisted man in the Army shall be eligible g^nsfera^to
for transfer to the Hospital Corps as a private. Sec. 5,
Act of March 1, 1887 (24 Stat. Z., 435).
FURLOUGHS TO ENLISTED MEN.
1378. Every officer commanding a regiment or an inde-
pendent troop, battery, or company, not in the field, may,
when actually quartered with such command, grant fur-
loughs to the enlisted men, in such numbers and for such
time as he shall deem consistent with the good of the
service. Every officer commanding a regiment, or an
independent troop, battery, or company, in the field, may
1 This section repeals and replaces the requirement of the act of February 27, 1893
(27 Stat. L., 486), "that hereafter, in time of peace no recruit shall be enlisted in
the Army for the first time who is over 30 years of age, and no private shall be reen-
listed who has served ten years or more, or who is over 35 years of age, except such
as have already served as enlisted men for twenty years or upward."
2 TRANSFER OF ENLISTED MEN.
Transfers of enlisted men will be made for cogent reasons only. They will be
effected as follows:
(1) From one company to another of the same regiment, not involving change of
station, by the colonel. In cases involving change, then by the colonel with the
consent of the department commander if change of station is within department
limits.
(2) From one regiment to another, and between companies of the same regiment
serving in different military departments, by the Commanding General of the Army.
(3) In all other cases, by the Secretary of War. Par. 125, A. K., 1901.
DETACHED SOLDIERS.
Enlisted men detached from their companies will be provided with descriptive lists
showing the pay due them, the condition of their clothing allowance, and all infor-
mation necessary +o the settlement of their accounts with the Government should
they be discharged. When it can be avoided, the descriptive list will not be intrusted
to the soldier, but to an officer or noncommissioned officer, under whose charge he
may be serving, or it may be forwarded by mail. The immediate commanding officer
will note upon the descriptive lists the date and result of the last vaccination of each
soldier. Par. 115, ibid.
22924—08 33
514 MILITARY LAWS OF THE UNITED STATES.
grant furloughs, not exceeding thirty days at one time, to
five per centum of the enlisted men, for good conduct in
the line of duty, but subject to the approval of the com-
mander of the forces of which said enlisted men form a
part. Every company officer of a regiment, commanding
any troop, battery, or company not in the field, or com-
manding in any garrison, fort, post, or barrack, may, in
the absence of his field officer, grant furloughs to the
enlisted men, for a time not exceeding twenty days in six
months, and not to more than two persons to be absent at
the same time.1 Eleventh Article of War.
1 Furloughs in the prescribed form for periods of twenty days may be granted to
enlisted men by commanding officers of posts, or by regimental commanders if the
companies to which they belong are under their control. A furlough will not be
granted to a soldier about to be discharged. Par. 116, A. R, 1901
Corps or department commanders may grant furloughs to enlisted men, sergeants
of the post noncommissioned staff excepted, for two months, and the Commanding
General of the Army for four months, or they may extend to such periods furloughs
already granted. For a longer period than four months the authority of the Secre-
tary of War is necessary. Permission to delay may be granted to enlisted men trav-
elingunder orders as authorized for furloughs. The conditions under which furloughs
to soldiers on reenlistment are authorized will be announced from time to time in
orders. Par. 117, ibid; G. O., 23, A. G. O., 18U9.
Furloughs to sergeants of the post noncommissioned staff or to enlisted men act-
ing aseuch may be granted as follows: By a po,;t commander for seven days, in case
of emergency only; by a department commander for one month. Application for
furlough for a longer period will be forwarded to the Adjutant-General of the Army
for the decision of the Secretary of War. Par. ] 19, ibid.
Furloughs will not be granted by commanding officers permitting soldiers to go
beyond the limits of the next higher command. To enable them to pass such limits
the sanction of higher authority must be obtained and indorsed on the furloughs.
The approval of the Secretary of War must be obtained to allow an enlisted man on
furlough to leave the United States. The limits prescribed will be stated in the fur-
lough, and if exceeded it may be revoked and the soldier arrested. A company
commander in forwarding an application for furlough will state previous absences on
furlough and the authority therefor. Par. 120, ibid.
On the application of a soldier on furlough, made at the nearest military station
and showing clearly the urgency of his case, a department commander may order
transportation and subsistence to be furnished to enable him to rejoin his proper sta-
tion, and the company commander will charge the cost thereof against the soldier's
pay on the next muster and pay roll, in accordance with paragraphs 1203 and 1422.
The date of the application will be entered on the furlough. Par. 121, ibid.
A soldier who has returned from furlough to the station from which furloughed,
his company having in his -absence changed station, is entitled to transportation at
the expense of the Government to the new station of his company. Par. Ill, ibid.,
1895.
Soldiers on furlough will not take with them their arms or accouterments, and no
payments will be made to them without authority from the Secretary of War. Par.
124, ibid. For orders in respect to sick furloughs to enlisted men of the volunteer
forces see G. O., 114, 121, 130, 134, 139, 148, 168, 170, 173, and 175, A. G. O., 1898;
Circulars 34, 39, 41, and 48, A. G. O., 1898.
Section 2 of the act of June 16, 1890 (26 Stat. L., 157), contained the requirement
that ' ' at the end of three years from the date of his enlistment every soldier whose
antecedent service has been faithful shall be entitled to receive a furlough for three
months, and that in time of peace he shall at the end of such furlough be entitled to
receive his discharge upon his own application: Provided further, That soldiers dis-
charged under the provisions of this section shall not be entitled to the allowances
provided in section twelve hundred and ninety of the Revised Statutes." See, how-
ever, in this connection section 2 of the act of August 1, 1894 (paragraph 1370, ante],
which reduced the length of the term of enlistment in time of peace to three years.
Section 2 of the act of June 16, 1890, ceased to be operative as to furloughs on August
1, 1897, and as to discharges at expiration of furlough on November 1, 1897.
MILITARY LAWS OF THE UNITED STATES.
515
THE RETIREMENT OF ENLISTED MEN.
Par.
1381. Foreign service.
1382. Allowance for subsistence, etc.
Par.
1379. Retirement after thirty years' serv-
ice.
1380. War service.
1379. When an enlisted man has served as such thirty
years in the United States Army or Marine Corps, either
as private or noncommissioned officer, or both, he shall
by application to the President be placed on the retired
list hereby created, with the rank held by him at the date
of retirement, and he shall receive thereafter seventy-five
per centum of the pay and allowances of the rank upon
which he was retired. Act of February U, 1885 (23 Stat.
L., 305}.
1380. If said enlisted man had war service with the
Army in the field, or in the Navy or Marine Corps in
active service, either as volunteer or regular, during the 26^564?'
war of the rebellion, such war service shall be computed
as double time in computing the thirty years necessary
to entitle him to be retired.1 Act of September 30 , 1890
(26 Stat. L., 504).
a°f!
beer<5m-
as double
of February 14, 1885 (23 Stat. L., 305), which created the retired list for
enlisted men, was amended by the act of September 30, 1890 (26 Stat. L., 504), by
the addition of the proviso permitting war service during the war of the rebellion to
be computed as double time in computing the thirty years' service necessary to entitle
him to be retired.
An enlisted man on the retired list is subject to trial by court-martial, and to dis-
honorable discharge by sentence, if such be adjudged. But the existing law, in
entitling him to be retired if he complies with its conditions, evidently contemplates
that he shall remain a pensioner on the bounty of the Government during the remain-
der of his life, if not forfeiting his claim by serious misconduct. So, held that retired
enlisted men could not legally be discharged by Executive order under the Fourth
Article of War, which contemplates soldiers on the active list only. Dig. Opin. J.
A. G., par. 2218.
Held, in the absence of any legislation to the contrary, that retired enlisted men,
like retired officers, might legally be employed in any Department of the Govern-
ment as clerks, messengers, watchmen, etc., and receive pay for such employment,
while at the same time retaining their positions on the retired list and receiving
retired pay. Dig. Opin. J. A. G., par. 2219.
The act of February 14, 1885 (23 Stat. L., 305), entitles a retired enlisted man to
three-fourths of his service ration. He is not entitled to commutation for things
which, in active service, he enjoys only in common with others, such as medicine,
medical services, fuel, and quarters. McKenna v. U. S., 23 Ct. Cls, 308.
The authorized pay and allowances of retired enlisted men will be paid them
monthly by the Pay Department. Their pay will be three-fourths of the monthly
pay allowed them by law in the grade held when retired, including reenlisted and
continuous-service pay then received. No deduction will be made except the monthly
tax of 12 J cents for the support of the Soldiers' Home. They are not entitled to com-
mutation for fuel or quarters, but will receive , commutation for subsistence and
clothing as follows:
For subsistence. — At the rate of 22£ cents per day.
For clothing. — Three-fourths of the average annual allowance prescribed in orders
for an entire enlistment in the grade from which retired, one- twelfth of such amount
to be paid monthly. The allowance of clothing to chief musicians is the same as
that to quartermaster-sergeants. Par. 149, A. R., 1901.
It has been held by the Secretary of War that the term "war service," as used in
the act of September 30, 1890, shall include service rendered as a commissioned offi-
516 MILITARY LAWS OF THE UNITED STATES.
ic£°relgn serv~ 1381< Hereafter, in computing length of service for
3i^a2ii6'1890'v' retirement, credit shall be given the soldier for double
the time of his actual service in Porto Rico, Cuba, or in
the Philippine Islands. Act of May 26, 1900 (31 Stat. L.,
d 1382. Hereafter a monthly allowance of nine dollars and
e, 18%, v. fifty cents shall be granted in lieu of the allowance for
29> p> 62' subsistence and clothing. Act of March 16, 1896 (29 Stat.
Z., 62).
DISCHARGE OF ENLISTED MEN.
Par.
1383. Discharges, by whom given.
1384. Jurisdiction after dishonorable dis-
charge.
1385. Discharge for disability.
Par.
1387. Discharge for dependency of parent.
1388,1389. Duplicate certificate of dis-
charge.
1390. The same, return of certificate.
1386. Discharge by purchase.
en^stCedam?S. °f 1383. No enlisted man, duly sworn, shall be discharged
* Art. war. f rOm the service without a discharge in writing, signed by
a field officer of the regiment to which he belongs, or by
the commanding officer, when no field officer is present;
and no discharge shall be given to any enlisted man before
his term of service has expired, except by order of the
President, the Secretary of War, the commanding officer
of a department, or by sentence of a general court-martial.1
Fourth Article of War.
cer, and that, for the purposes of this statute, the war began on April 15, 1861, and
ended on April 2, 1866, as respects all theaters of operation, except the State of Texas,
and as to that State that the war ended on April 20, 1866. Circular No. 2, 11 H. Q.
A., March 10, 1891.
Upon the retirement of an enlisted man from active service he is entitled to trans-
portation in kind to the place of his enlistment or to his home. Section 1290, Revised
Statutes, does not apply to enlisted men transferred to the retired list, in that they
are not discharged. 3 Dig. 2nd Compt. Dec., par. 874; U. S. v. Tyler, 105 U. S., 244.
1 An enlisted man will not be discharged before the expiration of his term except:
1. By order of the President or Secretary of War.
2. By sentence of a general court-martial.
3. On certificate of disability, by direction of the commander of a territorial depart-
ment or army in the field; but when the disability of a soldier is caused by disease
contracted before enlistment, or by his own misconduct or bad habits, discharge
will be ordered only by the Secretary of War.
4. In compliance with an order of one of the United States courts, or a justice or
a judge thereof, on a writ of habeas corpus. Par. 151, A. R., 1901.
The act of March 16, 1896 (29 Stat. L., 63), contains the requirement "that no
enlisted man discharged by order of the Secretary of War for disability caused by
his own misconduct shall be entitled to the travel allowances provided for in section
1290 of the Revised Statutes."
When an enlisted man is discharged, his company commander will furnish him
with final statements in duplicate or a full statement in writing of the reasons why
such final statements are not furnished. Final statements will not be furnished a
soldier who has forfeited all pay and allowances and has no deposits due him. When
the discharge is made on certificate of disability, the ascertained disability as recited
in the certificate must be given in the final statements as the reason or cause for
discharge. Par. 152, A. R, 1901.
When an enlisted man is discharged by expiration of service, his discharge will
take effect on the last day thereof; i. e., if enlisted on the second day of the month
MILITARY LAWS OF THE UNITED STATES. 517
1384. Soldiers sentenced by court-martial to dishonora-
ble discharge and confinement 1 shall , until discharged from j UUB xo ioyo
such confinement, remain subject to the Articles of War 5> v- *°, p. 484 s.
and other laws relating to the administration of military
justice. Sec 5, act of June 18, 1898 (30 Stat. Z., 484).
1385. No enlisted man discharged by order of the Sec-
retary of War for disability caused by his own misconduct
hall be entitled to the travel allowances provided for in ™> P- 63-
section 1290 of the Revised Statutes. Act of March 16,
1896(29 Stat. Z., 63).
his term will expire on the first day of the same month in the last year of his term
of enlistment. Par. 154, ibid.
For provisions of regulations respecting the discharge of enlisted men see para-
graphs 151-170, Regulations of 1901.
DISHONORABLE DISCHARGE.
A dishonorable discharge from the service is a complete expulsion from the Army
and covers all unexpired enlistments. Par. 168, A. R., 1901.
A dishonorable discharge is a discharge expressly imposed as a punishment by
sentence. Such a discharge is held also to be involved in a sentence " to be drummed
out of the service." It is" only by a sentence that a dishonorable discharge can be
authorized. Being a punishment, it cannot be prescribed by an Order. In a case of
this discharge, the word ''dishonorably" is inserted before the word "discharged"
in the certificate, and it is added that the discharge is given pursuant to the sentence
of a certain general court-martial, specifying it by reference to the order by which
it was constituted. Dig. Opin. J. A. G., 361, par. 25.
Held that an executed dishonorable discharge was an absolute expulsion from the
Army, and as such did not merely terminate the particular enlistment, but covered
all previous unexecuted enlistments of the soldier, if any. A soldier sentenced to a
dishonorable discharge, duly approved and executed, can not be made amenable for
a desertion committed under a prior enlistment. Ibid., par. 26.
The discharge of a soldier, discharged not by reason of the expiration of his term
of enlistment, but under a sentence of court-martial, should be dated as of the day
on which the approval of the sentence is officially published, or the order promul-
gating such approval is received, at the post where the soldier is held. It is to that
date that he is to be paid, if pay is due him. Ibid., 359, par. 16.
The formal certificate of discharge, furnished in blank by the Adjutant-General (see
par. 151, A. R. ), is, when duly made out and signed, legal evidence of the fact of
discharge, and of the circumstances therein stated, under which it was given. The
certificate is not a record, and its statements are not conclusive upon the Government
when contradicted by record or other better evidence. Dig. Opin. J. A. G., 358,
par. 13.
The discharge furnished to the soldier, or for him, takes effect, like a deed, upon
delivery. The delivery should be personal, unless, at its date, the soldier is in con-
finement awaiting trial or under sentence; in such case the delivery may be con-
structive, the certificate being committed to the commander of the company, post,
etc., to be retained by him for the soldier until released from arrest or imprisonment,
and then rendered to him personally. This is the recognized practice; the delivery
to the commander being deemed tantamount to actual delivery. Ibid., par. 14.
A soldier should not be furnished with his formal discharge on the day of the
expiration of his term if he is then awaiting sentence of court-martial. No soldier in
such a status can be entitled to his discharge till the result of his trial be published.
Ibid., 359, par. 15.
Any form of discharge other than such as is prescribed in the fourth Article of
War is irregular and inoperative (unless indeed otherwise authorized by subsequent
statute). Mere desertion does not operate as a discharge of a soldier; he may then
be dropped from the rolls of his command, but he is in no sense discharged from the
Army. Nor can an official publication, in orders, of a sentence of dishonorable dis-
charge have the effect of discharging a soldier; there must still be a notice, actual, as
by the delivery of the formal discharge certificate, or constructive, of the formal dis-
charge. A soldier can not discharge himself by simply leaving the service at the
518 MILITARY LAWS OF THE UNITED STATES.
DISCHARGE BY PURCHASE.
Pu??haserge by 1386> That in time of peace the President may, in his
i890°v426Up ei57( discretion and under such rules and upon such conditions
as he shall prescribe, permit any enlisted man to purchase
his discharge from the Army. The purchase money to
be paid under this section shall be paid to a paymaster of
the Army and be deposited to the credit of one or more of
the current appropriations for the support of the Army,
to be indicated by the Secretary of War, and be available
for the payment of expenses incurred during the fiscal
year in which the discharge is made.1 Sec. h act of June
16, 1890(26 Stat. Z., 157}.
expiration of his term. The final statements required by paragraph 141, A. K., to
be furnished with the discharge, constitute no part of the discharge; the discharge
is complete without them. Ibid., par. 17.
Discharge certificates will not be made in duplicate. Upon satisfactory proof of
the loss of a discharge or of its destruction without the fault of the party entitled to it,
the War Department may issue to such party a certificate of service, showing date of
enlistment in and discharge from the Army and character given on discharge certifi-
cate. Discharge certificates must not be forwarded to the War Department in cor-
respondence unless called for. Par. 155, A. R., 1901.
Blank forms for discharge and final statements will be furnished by the Adjutant-
General of the Army, and will be retained in the personal custody of company com-
manders; those for discharge will be of three classes: For honorable and for dishon-
orable discharge and for discharge without honor. They will be used as follows:
(1) The parchment discharge blank, for honorable discharge only, and the word
"honorably" will be interlined in the old blanks when used.
(2) The blank for dishonorable discharge, for such discharge alone.
(3} The blank for discharge without honor when a soldier is discharged:
la) Without trial, on account of fraudulent enlistment.
(6) Without trial, on account of having become disqualified for service, physically
or in character, through his own fault.
( c) On account of imprisonment under sentence of a civil court.
(d) On account of being at the expiration of his term of enlistment in confinement
under the sentence of a general court-martial which does not provide for dishonor-
able discharge.
(e) When discharge without honor is specially ordered by the Secretary of War
for any other reason. Par. 167, ibid.
An enlisted man remains in service until receipt of his discharge, or until such
action is taken as will render him legally chargeable with notice thereof, notwith-
standing the expiration of his term of enlistment during his absence on a furlough
granted at his own request. 2 Compt. Dec. , 94.
1 Under section 4 of the act of June 16, 1890, the President may, in his discretion,
permit a soldier to purchase his discharge, even if his service has not been faithful.
This section does not, as do section 1 (relating to pay) and section 2 (relating to dis-
charge and furlough), prescribe as a condition to receive its benefits that the ante-
cedent service shall have been "faithful." Dig. Opin. J. A. G., p. 362, par. 32.
The act of June 16, 1890, section 4, leaves it to the President, " in his discretion,"
to determine the amount to be paid for the discharge, the time of payment, etc., and,
indeed, whether the purchase shall be permitted at all. But it specifically declares
that the money when paid "shall be paid to a paymaster of the Army;" and, in
view of this express provision, held that payments could not legally be made to post,
regimental, company, or other commanders. The paymaster, a bonded official, is
appointed to receive payment in the first instance and thereupon make the deposit
directed in the act. Ibid. , par. 33.
Held that there was no legal authority for the refunding, by the military authori-
ties, of money paid to purchase a discharge under the act of June 16, 1890. This
clearly appears from the terms of the act, which provides that the money, when
MILITARY LAWS OF THE UNITED STATES. 519
DISCHARGE FOR DEPENDENCY OF PARENT.
1387. In the event of the enlistment of a soldier in the *!?P?ndency o£
parcni.
Army for the period required by law, and after the ex- ^?sit'mlt 8'
piration of one year of service should either of his parents
die, leaving the other solely dependent upon the soldier
for support, such sol Her may, upon his own application,
be honorably discharged from the service of the United
States upon due proof being made of such condition to
the Secretary of War. Sec. 30, act of February <2, 1901
(31 Stat. L.~756). .
paid, " shall be deposited in the Treasury" to the credit of some current appropria-
tion, to be designated by the Secretary of War, to be " available for the payment of
expenses incurred during the fiscal year in which the discharge is made." The act
moreover authorizes the President to permit such purchases "under such rules and
upon such conditions as he shall prescribe, ' ' and nothing is found in the rules actu-
ally proscribed (in General Orders 81, 108 of 1890, 48 of 1891, 32 of 1892, or 17 of
1893) which contemplates or refers to the refunding of such purchase money. Ibid.,
par. 1174.
In time of peace a soldier serving in the second year or first six months of the
third year of his first enlistment may apply to the Adjutant-General of the Army
through military Channels for the privilege of purchasing his discharge, but such
application will not be entertained unless based on satisfactory reasons fully set
forth by uho applicant and verified by the officer forwarding the application, nor
unless accompanied by a statement of the soldier's immediate commanding officer
showing the condition of his accounts. If such application be granted the purchase
price will be entered on the iinal statements as an item due the United States. A
soldier once discharged by purchase will not be granted that favor a second time.
A soldier serving in the second or any enlistment, but not receiving continuous serv-
ice or rcenlisted pay, is not debarred from discharge by purchase. The price of
purchase in the first month of the second year will be f 120, and will be $5 less in
each succeeding month of the period during which purchase may be authorized.
Par. 156, A. K., 1001.
Enlisted men who have served meritoriously twelve years or more, continuously or
otherwise, will be classified as veteran soldiers. If it be for their material benefit,
discharge may be granted them by the Secretary of War by way of favor as veterans.
A soldier once discharged as a veteran will not be discharged again bv wav of favor.
Par. 157, ibid.
Soldiers discharged as provided in paragraph 156 will not receive travel allow,
ances. Par. 158, ibid.
A soldier who has obtained his discharge by purchase under the provisions of
section 4, act of Juno ] •>, 1890, is not entitled to recover the money paid for said dis-
charge in pursuance of law. 2 Compt. Dec., 546. The accounting officers have no
authority to review the action of the War Department refusing to discharge, the
soldier for disability and requiring him to purchase his discharge as a condition
precedent to his release from service. 2 Compt. Dec. , 546. See also pars. 936 and
1547, A. R, 1901; circ. 13, A. G. O., 1895; circ. 7, A. G. 0., 1896, and circs. 38 and 40.
A. G. O., 1898.
DISCHARGE FOR DISABILITY.
When an enlisted man is permanently unfitted for military service because of
wounds or disease, he should, if practicable, be discharged on certificate of disability
before the expiration of the term of service in which the disability was incurred.
Blank forms will be furnished by the Adjutant-General of the Army, and the direc-
tions thereon will be strictly complied with. Par. 171, A. R, 1901.
When physical disability does not appear to be permanent, was incurred in line
of duty, and benefit may be expected from a change of climate, a report of the case
will be forwarded for the action of the Commanding General of the Army. The
soldier will not be transferred to another company. In cases likely to be benefited
by treatment in the Army and Navy General Hospital at Hot Springs, Ark., the
application required by the regulations for admission thereto will be made. A
520 MILITARY LAWS OF THE UNITED STATES.
DUPLICATE CERTIFICATES OF DISCHARGE.
cateSdiscSuSe" 1388f Whenever satisfactory proof is furnished to the
248IT'i3V18i7> p' War Department that any noncommissioned officer or pri-
"See. 224, B. s. vate sol^61* wno served in the Army of the United States
in the late war against the rebellion has lost his certificate
of discharge, or the same has been destroyed without his
privity or procurement, the Secretary of War shall be
authorized to furnish, on request, to such noncommis-
sioned officer or private a duplicate of such certificate of
discharge, to be indelibly marked, so that it may be known
as a duplicate; but such certificate shall not be accepted
as a voucher for the payment of any claim against the
United States for pay, bounty, or other allowance, or as
evidence in any other case.1
tiSSfS^fte Tn 1389- That the Secretary of War and the Secretary of
trAprai4ei89o v ^e ^avv ^e> an(^ they are hereby, authorized and required
26, p. 55. to- issue certificates of discharge or orders of acceptance of
resignation, upon application and proof of .identity, in the
true name of such persons as enlisted or served under
assumed names, while minors or otherwise, in the Army
and Navy during the war of the rebellion and were hon-
orably discharged therefrom . Applications for said certifi-
cates of discharge or amended orders of resignation may
be made by or on behalf of persons entitled to them; but
no such certificate or order shall be issued where a name
was assumed to cover a crime or to avoid its consequence.1
Act of April 14, 1890 (26 Stat. L., 55).
record of cases transferred under the foregoing provisions, with a report of results,
will be forwarded to the Surgeon-General at the end of each calendar year. Par.
172, ibid.
When an application for discharge is approved, the post or regimental commander
will furnish to the surgeon by whom the certificate was given, or to the senior sur-
geon of the command to which the soldier was attached at the time of his discharge, a
letter setting forth the full name and rank ot the soldier, the company and regiment
to which he belonged, the date of discharge, and the cause thereof as stated in the
certificate. The surgeon, having made a true copy of the letter for the completion
of his own records, will forward the original to the Surgeon-General direct. Par.
173, ibid.
When there is a probable case for pension, special care will be taken to state in
the certificate the degree of disability, to describe particularly the disability, wound,
or disease, the extent to which it deprives the soldier of the use of any limb or
faculty, or affects his health, strength, activity, constitution, or capacity to labor.
Par. 174, ibid.
1 Discharge certificates will not be made in duplicate. Upon satisfactory proof of
the loss of a discharge, or of its destruction without the fault of the party entitled to
it, the War Department may issue to such party a certificate of service, showing
date of enlistment in and discharge from the Army and character given on discharge
certificate. Discharge certificates must not be forwarded to the War Department
in correspondence unless called for. Par. 155, A. R., 1901.
The dicharge certificates authorized to be issued under the provisions of these
statutes is not to be confounded with the certificate denominated a "deserter's
release," the issue of which is authorized in certain cases by G. O. 55, A. G. O., 1890
(26 Stat. L., 54). See note to paragraph 1411, post.
MILITARY LAWS OF THE UNITED STATES.
521
1390. In all cases where it has become necessary for
officer or enlisted man of the Army to file his evidence
honorable discharge from the military service of the^
United States to secure the settlement of his accounts, theP-|J;f
XT
accounting officer with whom it has been filed shall, upon
application by said officer or enlisted man, deliver to him
such evidence of honorable discharge; but his accounts
shall first be duly settled, and the fact, date, and amount
of such settlement shall be clearly written across the face
of such evidence of honorable discharge, and attested by
the signature of the accounting officer before it is delivered.
n
it.
TRAVEL PAY ON DISCHARGE.
1391. Hereafter an enlisted man when dis- diS?gepay on
charged from the service, except by way of punishment 31Mpar^ 1901> v'
for an offense, shall receive four cents per mile from the
place of his discharge to the place of his enlistment, enroll-
ment, or original muster into the service. l Act of March
£, 1901 (31 Stat. Z., 908).
1392. For sea travel on discharge * * * transpor-
tation and subsistence only shall be furnished to enlisted
men.1 Act of March 2, 1901 (31 Stat. Z.,
ABSENCE WITHOUT LEAVE.
1393. Any soldier who absents himself from his troop,
battery, company, or detachment without leave from his
commanding officer shall be punished as a court-martial
may direct. Thirty-second Article of War.
32Art-War.
DESERTION.
Par.
1394. Offense; penalty.
1395. Enlistment without discharge.
1396. Statutory penalties, making good
time lost.
1397. The same, forfeiture of citizenship.
1398. The same restriction.
Par.
1399. Evasion of draft.
1400. Forfeiture of bounty land.
1401, 1402. Enlistment of deserter.
1403. Forfeiture of deposits.
1404. Forfeiture of pension.
1394. Any officer or soldier who, having received pay, or ^Desertion; pen-
having been duly enlisted in the service of the United 47 Art- War-
States, deserts the same, shall, in time of war, suffer death,
or such other punishment as a court-martial may direct;
1 For statutes and regulations governing the payment of travel allowances to officers
and enlisted men, see the chapter entitled THE PAY DEPARTMENT.
522 MILITARY LAWS OF THE UNITED STATES.
and in time of peace, any punishment, excepting- death,
which a court-martial may direct.1 Forty-seventh Article
of War.
a^otherinreg£ 1395. No noncommissioned officer or soldier shall enlist
m!otirt!eW»r. himself in any other regiment, troop, or company without
a regular discharge from the regiment, troop, or company
in which he last served, on a penalty of being reputed a
deserter, and suffering accordingly. Arid in case any
officer shall knowingly receive and entertain such noncom-
missioned officer or soldier, or shall not, after his being
discovered to be a deserter, immediately confine him and
give notice thereof to the corps in which he last served,
the said officer shall, by a court-martial, be cashiered.
Fiftieth Article of War.
1 See the Forty-seventh Article of War.
Desertion is an unauthorized absenting of himself from the military service by an
officer or soldier with the intention of not returning. In other words, it is the vio-
lation of military discipline familiarly known as absence without leave (whether
consisting in an original absenting without authority or in an overstaying of a
defined leave of absence), accompanied by an animus remanendi or non revertendi,
this animus constituting the gist of the offense. In order to establish the commis-
sion of the specific offense both these elements — the fact of the unauthorized vol-
untary withdrawal and the intent permanently to abandon the service — must be
proved. The intent may be inferred not indeed from the fact of absenting alone,
but from the circumstances attending this fact, and here the duration of the absence
is especially material. Thus the circumstance that the- absence has been exception-
ally protracted and quite unexplained will in general furnish a presumption of the
existence of the necessary intent. An unauthorized absence, however, of a few
hours, terminated by a forcible apprehension, may, under certain situations, be suffi-
cient evidence of such intent, and thus proof of a desertion; while an absence for a
considerable interval, unattended by circumstances indicating a purpose to separate
permanently from the service, or to dissolve the pending engagement of the soldier,
may be proof simply of the minor included offense. In order to determine whether
or not the officer or soldier absented himself with the intent not to return, i. e.,
whether his offense was desertion or absence without leave, all the circumstances
connected with his leaving, absence, and return (whether compulsory or voluntary)
must be considered together. Each case must be governed by its own peculiar facts,
and no general rule on the subject can be laid down. Dig. Opin. J. A. G. , par. 1053.
No man will be reported a deserter until after the expiration of ten days (should
he remain away that length of time), unless the company commander has conclusive
evidence of the absentee's intention not to return; but the commanding officers will
take steps to apprehend soldiers absent without leave as soon as that fact is reported.
Should the soldier not return, or not be apprehended, within the time named, his
desertion will date from the commencement of the unauthorized absence. An
absence without leave of less than one day will not be noted upon the muster and
pay rolls. Par. 144, A. K., 1901.
When a deserter surrenders or is delivered at a military post, the post commander
will cause immediate inquiry to be made in regard to dates of enlistment and deser-
tion, and if these indicate that trial is barred by law, and the deserter claims to have
been within the limits of the United States during two years of his absence in deser-
tion and there is no attainable evidence in disproof thereof, will require him to file
an affidavit asserting his claim, will immediately set him at liberty with instructions
to apply by letter to the Adjutant-General of the Army for a "deserter's release,"
and will then report his action to the Adjutant-general of the Army, transmitting
with the report the affidavit above mentioned. Par. 131, ibid.
An enlisted man apprehended or surrendering as a deserter, and whose trial for
desertion is not barred by the statute of limitations, will be examined by a medical
officer at the post where he is received, and a report of this examination will be for-
warded to department headquarters. If, on account of disease, age, or other perma-
nent disability, the man is found unfit for service, the report, with the department
MILITARY LAWS OF THE UNITED STATES. 523
STATUTORY PENALTIES AND FORFEITURES.1
1396. Every soldier who deserts the service of the United ti^?o?tg g°°d
States shall be liable to serve for such period as shall, with 48 Art- War-
the time he may have served previous to his desertion,
amount to the full term of his enlistment; and such soldier
shall be tried by a court-martial and punished, although
the term of his enlistment may have elapsed previous to his
being apprehended and tried.2 Forty -eighth Article of
War.
commander's recommendation thereon, will be forwarded to the Adjutant-General of
the Army. If the examination shows that the man is fit for service the department
commander will bring him to trial, or restore him to duty without trial, as the inter-
ests of the Government may dictate. Par. 132, ibid.
Deserters will be brought to trial with the least practicable delay. While await-
ing trial they will receive no pay, nor will they be permitted to sign pay rolls, and
will be required to wear the clothes worn at the time of arrest, unless it should be
imperative to issue other clothing, when, as far as practicable, only deserters' or
other unserviceable clothing will be issued. Par. 140. ibid.
A deserter will not be restored to duty without trial, except by authority compe-
tent to order his trial. Such restoration does not remove the charge of desertion,
nor relieve the soldier from any of the forfeitures attached to that offense. He must
make good the time lost by desertion, refund the reward and expenses paid for appre-
hension and delivery, and forfeit pay while absent. Par. 132, A. R., 1895.
.DISPOSITION OF EFFECTS OF DESERTERS.
The clothing abandoned by a deserter will be turned over to the quartermaster
with a certificate from the company or detachment commander showing its condition
and the name of the deserter to whom it belonged. All other personal effects of a
deserter will be disposed of as in the case of unclaimed effects of deceased soldiers.
Par. 141, A. R., 1901.
1 The forfeiture of pay and allowances prescribed for deserters by paragraphs 126,
130, and 132 of the Army Regulations of 1895 can be imposed, in any case, only upon a
satisfactory ascertainment of the fact of desertion. The same may indeed legally be
enforced in the absence of an investigation by a military court, as, for instance, upon
the restoration to duty without trial, by the order of competent authority, under
paragraph 128 of the Army Regulations, of a deserter as such. But in general, in
this case equally as in that of the statutory liability, the forfeiture can safely be
applied only upon the trial and conviction by court-martial of the alleged deserter.
The conviction must, of course, be duly approved; if it be disapproved, the soldier
can not legally be subjected to the forfeiture, since he can not be treated as a deserter
in law. Nor can he be subjected to the forfeiture if he is acquitted, though the find-
ing be disapproved by the reviewing authority. A removal, in orders of the War
Department, of a charge of desertion entered by mistake upon the rolls against a
soldier, operates to relieve him of any and all stoppages which have been charged
against his pay account for forfeitures authorized by the Army Regulations in cases
of deserters. Dig. Opin. J. A. Gen., 342, par. 9.
A deserter can not legally be subjected to any forfeiture other than those prescribed
by statute or army regulation. He incurs, for example, no forfeiture of his own
personal property. So, where it was proposed to sell certain private property belong-
ing to and left by a deserter and devote the proceeds to the post fund, held that there
was no legal authority for such appropriation by the military authorities. So a
soldier, by reason of having deserted, does not forfeit bounty money which has been
paid him upon enlistment or subsequently, or any other money found in his possession
upon his arrest. And such money can not legally be withheld from him to be appro-
priated to a regimental or post fund or any other purpose, but being his own personal
property, unaffected by his offense, must be treated as such. Ibid., par. 1064.
2 A deserter will make good the time lost by desertion, unless discharged by com-
petent authority. He will be considered again in service upon his return to military
control; but if a deserter enlists while in desertion, his services under such unlawful
enlistment will not be counted as making good any of the time lost by desertion.
Par. 142, A. R., 1901. See 48th article of war.
524 MILITARY LAWS OF THE UNITED STATES.
1397- All persons who deserted the military or naval
service of the United States and did not return thereto or
4908' a 13> p' report themselves to a provost-marshal within sixty days
sec. 1996, K.S. after tne issuance of the proclamation by the President
dated the eleventh day of March, eighteen hundred and
sixty-five, are deemed to have voluntarily relinquished and
forfeited their rights of citizenship, as well as their right
to become citizens; and such deserters shall be forever in-
capable of holding any office of trust or profit under the
United States, or of exercising any rights of citizens
thereof. *
di?relndnsaiiSL" 1398. No soldier or sailor, however, who faithfully
?o0rfeituJS"rf the served according to his enlistment until the nineteenth day
Iajuiyci9?i867,c. of April, eighteen hundred and sixty-five, and who, with-
^feee.W^B'.s. out proper authority or leave first obtained, quit his com-
mand or refused to serve after that date, shall be held to
be a deserter from the Army or Navy; but this section
shall be construed solely as a removal of any disability such
soldier or sailor may have incurred, under the preceding
section, by the loss of citizenship and of the right to hold
office, in consequence of his desertion.
dmfvt°iding the 1399- "Every person who hereafter deserts the military
79??2i? V1^!?,' p! or naval service of the United States, or who, being duly
49s'ec.i998,R.s. enrolled, departs the jurisdiction of the district in which
he is enrolled, or goes beyond the limits of the United
States with intent to avoid any draft into the military or
naval service, lawfully ordered, shall be liable to all the
penalties and forfeitures of section nineteen hundred and
ninety-six.
nt°o 140°- No person who has been in the military service of
e United States shall, in any case, receive a bounty-land
: warrant if it appears by the muster rolls of his regiment
207, s. i, v. 10, p. or corps that he deserted or was dishonorably discharged
Sec. 2438, R.s. from service.
0* 1401- No minor under the age of sixteen years, no insane
4i or mtoxicated person, no deserter from the military servio
S;0^ the United States, and no person who has been con
F877,^.i92427' victed of a felony shall be enlisted or mustered into the
sec. iii8,B.s. military service.
1 The forfeiture of the rights of citizenship and the incapacity to hold office under
the United States, imposed upon deserters by the act of March 3, 1865 (sees. 1996,
1998, R. S.), can be incurred only upon and as incident to a conviction of desertion
by a general court-martial, duly approved by competent authority. These disabili-
ties, though attaching to every such conviction, may be removed by an Executive
pardon of the offender. Dig. Opin. J. A. G., par. 1061.
Such is believed to have been the uniform course of ruling in the civil courts. See
State v. Symonds, 57 Maine, 148; Holt v. Holt, 59 ibid., 464; Severance v. Healy, 50
MILITARY LAWS OF THE UNITED STATES. 525
1402. No minor under the age of fourteen years, no insane bePSgdnot to
or intoxicated person, and no deserter from the naval or ^4$, JSy 12)
military service of the United States shall be enlisted inj?jj; af^fefjj
the naval service. 21&!3i42o B.S.
1403. Any enlisted man of the Army may deposit his f Jgjosits ' ^
savings, in sums not less than five dollars, with any Army 16^syiV8r7' p'
paymaster, who shall furnish him a deposit book, in which n£ec> 1306<B<S
shall be entered the name of the paymaster and of the
soldier, and the amount, date, and place of such deposit.
The money so deposited shall be accounted for in the same
manner as other public funds, and shall pass to the credit
of the appropriation for the pay of the Army, and shall
not be subject to forfeiture by sentence of court-martial,
but shall be forfeited by desertion, and shall not be per-
mitted to be paid until final payment on discharge, or to
the heirs or representatives of a deceased soldier, and that
such deposit be exempt from liability for such soldier's
debts: Provided, That the Government shall be liable for
the amount deposited to the person so depositing the same.
1404. Any soldier who deserts shall, besides incurring Forfeiture of
the penalties now attaching to the crime of desertion, for- pes!sl6°n26 April,
feit all right to pension which he might otherwise have
acquired. Sec. 6, act of April 26, 1898.
AIDING, PERSUADING, ENTICING TO DESERT.
1405. Any officer or soldier who advises or persuades any ad^?£hmoerntfe°rr
other officer or soldier to desert the service of the United fading deser-
tion.
States, shall, in time of war, suffer death, or such other 61 Art- War>
punishment as a court-martial may direct; and in time of
peace, any punishment, excepting death, which a court-
martial may direct. Fifty-first Article of War.
1406. Every person who entices or procures, or attempts Enticing deser-
J J tiqns from the
or endeavors to entice or procure, any soldier in the mili-111111^01^™1
tary service of the United States, or who has been recruited 75Msa2!/' 18if ' c-
for such service, to desert therefrom, or who aids any such 78!L'ru^' 1^i
soldier in deserting or attempting to desert from such serv- ]jb- '^ 1877, v!
ice, or who harbors, conceals, protects, or assists any such Sec.6456, K.S.
soldier who may have deserted from such service, knowing
him to have deserted therefrom, or who refuses to give
up and deliver such soldier on the demand of any officer
authorized to receive him, shall be punished by imprison-
ment not less than six months nor more than two years,
and by a fine not exceeding five hundred dollars; and every
N. Hainp., 448; Gotcheus v. Matthewson, 61 N. Y., 420 (and 5 Lansing, 214; 58
Barb., 152); Huber v. Reilly, 53 Pa. St., 112; McCafferty v. Guyer, 59 ibid., 110;
Kurtz v. Moffit, 115 U. S., 501.
526 MILITARY LAWS OF THE UNITED STATES.
person who entices or procures, or attempts or endeavors to
entice or procure, any seaman or other person in the naval
service of the United States, or who has been recruited for
such service, to desert therefrom, or who aids any such
seaman or other person in deserting or in attempting to
desert from such service, or who harbors, conceals, pro-
tects, or assists any such seaman or other person who may
have deserted from such service, knowing him to have
deserted therefrom, or who refuses to give up and deliver
such sailor or other person on the demand of any officer
authorized to receive him, shall be punished by imprison-
ment not less than six months nor more than three years,
and by a fine of not more than two thousand dollars, to be
enforced in any court of the United States having juris-
diction. x
APPREHENSION OF DESERTERS — REWARDS.
1407t United States marshals and their deputies, sher-
^s an(^ their deputies, constables, and police officers
of towns and cities are hereby authorized to apprehend,
arrest, and receive the surrender of any deserter from the
Army for the purpose of delivering him to any person in
the military service authorized to receive him.2 Sec. 3,
act of June 16, 1890 (26 Stat. Z., 157).
1408. It shall be lawful for any civil officer having
!^, Oct. i, authority 'under the laws of the United States or of any
1890, v. 26, p. 648. g^ate, Territory, or District, to arrest offenders, to sum-
marily arrest a deserter from the military service of the
United States and deliver him into the custody of the mili-
tary authority of the General Government.3 Sec. 2, act
of June 18, 1898 (30 Stat. Z., 484).
reherSon°ra8 1409. For the apprehension, securing, and delivery (of
MarT'is^ v deserters and the expenses incident to their pursuit, and
so, p. 1070. no greater sum than fifty dollars for each deserter shall,
1 Where a civil official, having made an arrest of a deserter, concealed him from
the military authorities, and afterwards permitted or connived at his escape, recom-
mended that the Attorney-General be requested to instruct the proper United States
district attorney to initiate proceedings under section 5455, Revised Statutes. Dig.
Opin. J. A. G., 345, par. 17.
2 See, in this connection. Clay v. U. S., Devereux, 25, in which an officer, who,
under orders of a superior, had, without previously procuring proper authority to
enter and search from a civil magistrate, broken into a dwelling house for the pur-
pose of securing the arrest of certain deserters, was held to have committed an un-
justifiable trespass, and his claim to be reimbursed by the United States for the
amount of a judgment recovered against him on account of his illegal act was disal-
lowed by the Court of Claims. See also Matthews v. U. S., 32 Ct. Cls., 123; Spinney
v. U. S., ibid., 397.
3 This statute replaces section 2, act of October 1, 1890 (26 Stat. L., 648), in pari
materia.
MILITARY LAWS OF THE UNITED STATES. 527
in the discretion of the Secretary of War, be paid to any
officer or citizen for such services and expenses.1 Act of
March 3, 1899 (30 8tat. Z., 1070).
1 The actual payment of the compensation in such cases is authorized by the an-
nual army appropriation acts, which, in appropriating for the incidental expenses of
the Quartermaster's Department, include as an item — " for the apprehension, securing,
and delivering of deserters, and the expenses incident to their pursuit." Prior to
theactof August 6, 1894 (28 Stat. L., 239), the maximum reward for the apprehension
and delivery of a deserter from the military service was fixed at $30. The act of
August 6, 1894 (28 Stat. L., 239), fixed the maximum amount of such reward at $10,
and this provision was repeated in the acts of February 12, 1895 (28 Stat. L., 659);
March 16, 1896, 29 ibid., 65; March 2, 1897, ibid., 614, and March 16, 1898, 30 ibid.,
30. Under the authority conferred by the above statute the following regulation was
promulgated by the Secretary of War in G. O. 160, A. G. 0., 1899:
A reward of $30 wTill be paid to any civil officer having authority for the appre-
hension and delivery to the proper military authorities at a military station (or at
some convenient point as near thereto as may be agreed upon) of any deserter from
the military service, except such as can claim exemption from trial under the statute
of limitations, and such officer will also be reimbursed for actual cost of tickets over
the shortest usually traveled route for himself to and from such station or point and
for the deserter to such station or point not to exceed $20. The reward and actual
cost of tickets will be paid by the Quartermaster's Department, and will be in full
satisfaction of all expenses for arresting, keeping, and delivering the deserter. The
payment will be reported to the commander of the company or detachment to which
the deserter belongs. Par. 135, A. R., 1901.
Rewards or expenses paid for apprehending a deserter, and the expenses incurred
in transporting him from point of apprehension, delivery, or surrender to the sta-
tion of his company or detachment, or to the place of his trial, including the cost of
transportation of the guard, will be set against his pay upon conviction of desertion
by a court-martial, or upon his restoration to duty without trial. A soldier con-
victed by a court-martial of absence without leave will be charged with the expense
incurred in transporting him to his proper station. The transportation and subsist-
ence of witnesses wrill not be charged against a deserter. Par. 137, ibid.
If a soldier be brought to trial under a charge of desertion and acquitted, or con-
victed of absence without leave only, or if the sentence be disapproved by proper
authority, any amount paid as a reward for his arrest will not be stopped against his
pay unless, in case of conviction of absence without leave, the sentence of the court
shall so direct. Par. 138, ibid.
The reward of $30, made payable by paragraph 156, Army Regulations, 1863, is not
due merely on the apprehension of a deserter; he must also be delivered "to an officer
of the Army at the most convenient post or recruiting station." The fact of the offer
of a reward for the arrest of a deserter does not authorize a breach of the peace or
commission of an illegal act in making the arrest. Dig. Opin. J. A. G., par. 1071 and
note.
The amount of the reward and reimbursement provided for in G. O. 160, A. G. O.,
1899, are there stated to be "in full satisfaction of all expenses for arresting, keeping,
and delivering the deserter." Disbursements made by a civilian, where no arrest is
effected, are at his Ovvn rink, and can not legally be reimbursed by the military
authorities. Ibid., par. 1072.
The legal liability imposed upon the soldier by paragraph 137, Army Regulations,
1901, to have the amount of the reward stopped against his pay, is quite independent
of the punishment which may be imposed upon him by sentence of court-martial on
conviction of the desertion. " Such stoppage need not be directed in the sentence;
courts-martial indeed have sometimes assumed to impose it, like an ordinary forfeiture
of pay, but its insertion in the sentence adds nothing to its legal effect. Ibid., par.
1073.
Where a soldier, charged with desertion, is acquitted, or where, if convicted, his
conviction is disapproved by the competent reviewing authority, he can not legally
be made liable for the amount of a reward paid or payable for his arrest as a deserter,
since in such cases he is not a deserter in law. Ibid., par. 1074.
Where a soldier for whose apprehension as a supposed deserter the legal reward
has been paid, is subsequently brought to trial upon a charge of desertion, and is
found guilty not of desertion but only of the lesser and distinct offense of absence
without leave, he clearly can not legally be held liable for the reward by a stoppage
of the amount against his pay. In such a case, the instrumentality resorted to by
528 MILITARY LAWS OF THE UNITED STATES.
STATUTE OF LIMITATIONS IN DESERTION.
1411> No person shall be tried or punished by a court-
^Apr. 11, 1890, v. martial for desertion in time of peace, and not in the face
26, p. 54. of an enemy5 committed more than two years before the
arraignment of such person for such offense, unless he shall
the United States for determining the nature of his offense — the court-martial —
having pronounced that it was not desertion, the Government is bound by the result,
and to visit upon him a penalty to which a deserter only can be subject, would be
grossly arbitrary and wholly unauthorized. Moreover, such action would be directly
at variance with the terms of paragraph 137 of the Army Regulations of 1901, which
fixes such liability upon the soldier tried in the event only of his conviction of deser-
tion, unless indeed the sentence of the court expressly forfeits the amount. Ibid.,
par. 1075.
PAYMENT OF REWARDS.
To entitle a person (under paragraph 137, Army Regulations of 1901) to the reward
for the arrest of a deserter, the party arrested must be still a soldier. Though, at the
time of the arrest, the period of his term of enlistment may have expired, or he may
be under sentence of dishonorable discharge, yet if he has not been discharged in
fact, the official duly making the arrest, etc., on account of a desertion committed
before the end of his term, becomes entitled to the payment of the reward specified
in the regulations. Similarly held, where the soldier, arrested when at large as a
deserter, had been sentenced to confinement ( without discharge) , and had escaped
therefrom. Ibid., par. 1076.
The soldier arrested must be a deserter and legally liable as such. If he has been
judicially determined to be not a deserter, as where he has been convicted of absence
without leave only (see paragraph 126, Army Regulations); or, if, in view of the
limitation of the one hundred and third article, he has a legal defense to a prosecu
tion for desertion (General Orders 22 of 1893), the reward is not payable for his
apprehension. Ibid., 347, par. 27. See also par. 127, A. R., 1895.
Where the soldier when arrested had been absent but chree days, and was still in
uniform, and had not been reported or dropped as a deserter, and his company com-
mander had not the " conclusive evidence " of his "intention not to return," referred
to in paragraph 144, Army Regulations, 1901, held that there was not sufficient evi-
dence that he was a deserter to justify the payment of the reward for his arrest and
delivery. Ibid. , par. 1078.
The arrest made must be a legal one. Thus held that the reward was not payable
for an arrest made on the soil of Mexico, involving a violation of the territorial rights
of that sovereignty. An act done in violation of law can not be the basis of a legal
claim. Ibid., par. 1080.
Where the deserter was not arrested by, but surrendered himself to, the civil
official, who in good faith took him into custody and securely held and duly deliv-
ered him — advised that there had been a substantial apprehension and that the
reward was properly payable. [See Circular No. 1 (H. A.), 1886.] Ibid., par. 1081.
The delivery should be personal and manual on the part of the civil official.
Where a soldier who had deserted was sentenced to a penitentiary as a horse thief,
and at the end of his term of imprisonment a United States marshal caused informa-
tion that he was a deserter to be conveyed to the commander o.f a neighboring mili-
tary post, who thereupon had him arrested and brought to the post, held that the
marshal was not entitled to claim the reward. Ibid., par. 1082.
So, where a civil official merely informed a captain of artillery that two soldiers
serving in his battery were deserters from the battalion of engineers, held that,
though such information was correct, the official was not entitled to the reward;
and that the amount of the same, which had been erroneously paid him on the cer-
tificate of the captain, should be charged against the latter under paragraph 736,
Army Regulations, 1901. Ibid., par. 1083.
The reward should be withheld where there is evidence of collusion between the
alleged deserter and the civil official. Advised that a suspicion of such collusion was
properly entertained in a case where the soldier, after an absence of but a few days,
voluntarily surrendered himself, at or near the post of delivery, to a policeman, wdo
turned him over, without expense or difficulty, to the military authorities who hid
MILITARY LAWS OF THE UNITED STATES. 529
meanwhile have absented himself from the United States,
in which case the time of his absence shall be excluded in
computing the period of the limitation: Provided, That
said limitation shall not begin until the end of the term for
which said person was mustered into the service.1 Act of
April 11, 1890 (26 Stat. L., 64).
not treat him as a deserter but caused him to be charged, tried, and convicted as an
absentee without leave only. Ibid., par. 1086.
An officer of the customs, empowered by law to make arrests of persons violating
the revenue laws, but having no such general authority as is ordinarily possessed by
peace officers "to arrest offenders" (according to the terms of the act of October 1,
1890, authorizing certain civil officials to arrest deserters) —held not entitled to be
paid the regulation reward for the apprehension, etc., of a deserter from the Army.
Ibid., par. 1087.
Held that a justice of the peace of Idaho was not, by the laws of that State, a peace
officer or authorized to arrest offenders, and was therefore not within the terms of
the act of October 1, 1890, or legally entitled to be paid the reward for the arrest, etc.,
of a deserter. Such justice may by his warrant authorize and thus cause arrests, but
actual arrest pertains, under the laws of the State, to another class — sheriffs, consta-
bles, city marshals, and policemen. But held that a member of -the Indian police,
established under the regulations of the Indian Office, was a civil officer having
authority to arrest offenders, and was entitled to the reward for the arrest of a
deserter. Ibid., par. 1088.
Circular No. 11 (H. A. ), 1883 declares that the reward shall not be paid where the
deserter, at the time of arrest, "is serving in some other branch of the Army," etc.
Thus held that the reward was not payable for the arrest of a deserter from the cav-
alry, who subsequently to his desertion, had enlisted in an infantry regiment in which
he was serving at the date of the arrest. Ibid., par. 1091.
Where a civil official in good faith and in compliance with -military instructions,
made the arrest and delivery of a deserter, who, however, was of the class of deserters
specified in General Orders '22 of 1893, viz, those who "would have the right to claim
exemption from trial and punishment" under the present one hundred and third
article of war — a fact not within the knowledge of the official and which he could
not have ascertained, but who therefore had no legal claim for the payment of the
reward — held that the reasonable expenses of such official incurred in the arrest, etc.,
might well be allowed by the Secretary of War out of the appropriation for the con-
tingent expenses of the Army. But the civil official takes the risk of the soldier being
or not being an actual deserter. If he turns out to be not one the official loses his
time and disbursements, if any. Thus held that such official could have no claim to
be reimbursed his expenses incurred in making, in good faith, the arrest of a supposed
deserter who was in fact a dishonorably discharged soldier. Ibid., 349, par. 37.
A deserter is not chargeable, under paragraph 137, Army Kegulations, 1901, with
the expenses of transportation therein specified, if his conviction has been duly
disapproved; such disapproval being tantamount to an acquittal. Ibid., par. 1067.
The expense of the transportation of a convicted deserter, incurred in the course of
the execution of his sentence is not chargeable against the deserter under paragraph
137, Army Regulations of 1901, but must be borne by the United States. Ibid.,
par. 1068.
1 The eo-called "deserter's release," provided for by General Orders, 55, of 1890, is
accorded when, by reason of the period which has elapsed since the end of his term
of enlistment, the deserter could successfully plead the statute of limitations to a
prosecution for his desertion. This period is complete at the expiration of two
years from the end of its term. But where a soldier, who would have been eligible
for such release %on May 9, 1894, was, in February preceding, arrested, brought to
trial, convicted, and sentenced to be dishonorably discharged, and was so discharged
accordingly, held that he was not within the privilege of the General Orders, and
that the release could not be accorded him. [As to the purpose and effect of this
"release," see Circular No. 5, H. Q. A., 1894.] Dig. Opin. J. A. G., par. 1100.
The "deserter's release" is intended for deserters in whose favor the limitation of
the present one hundred and third article of war has fully run, and who therefore
22924—08 34
530
MILITARY LAWS OF THE UNITED STATES.
MISCELLANEOUS PROVISIONS.
Par.
1412. Exemption of enlisted men from
arrest for debt.
from Carre8tIfar
Par.
1413. Enlisted men not to be u«ed
servants.
° enligte<i man shall, during his term of service,
: 1287, R. s. De arrested on mesne process, or taken or charged in exe-
cution for any debt, unless it was contracted before his
enlistment, and amounted to twenty dollars when first
contracted.
notntcftbe used 1413. No officer shall use an enlisted man as a servant in
as servants. onv r»a«ip
sec. 14, July is, aiv c s
1870, v. 16, p. 319. Bee. 1282, B. S.
DECEASED SOLDIERS.
Par.
1414. Deceased soldiers' effects.
Par.
1415. Officers charged with effects of de-
ceased soldiers to account for
same.
1414< 1° case °f tne death of an7 soldier, the command-
126 Art. war. jng officer of hfg troop, battery, or company shall immedi-
ately secure all his effects then in camp or quarters, and
shall, in the presence of two other officers, make an inven-
tory thereof, which he shall transmit to the office of the
Department of War.1 One hundred and twenty -sixth
Article of War.
1415- Officers charged with the care of the effects of
to CaS»u5tdifor Deceased officers or soldiers shall account for and deliver
S? 'Art. w.r. tne same, or the proceeds thereof, to the legal representa-
tives of such deceased officers or soldiers. And no officer
so charged shall be permitted to quit the regiment or post
until he has deposited in the hands of the commanding
have a perfect defense to a prosecution. It was designed to secure them against pro-
ceedings for desertion and to obviate the expenses to which the Government might
be put in the matter of their arrest and their trial. But it is not, and can not, in
view of the provisions of article 4, serve as a discharge from the Army. The lan-
guage of General Orders, 55, of 1890, which describes it as a release " from the Army,"
is therefore faulty. Ibid., par. 1101.
A deserter who has been once dishonorably discharged is not a subject for the
"release" — does not belong to the class of persons for whom it is intended. It is
designed for soldiers actually in service. It can not therefore now be given to one
who was a soldier of a volunteer organization during the late war of the Rebellion.
Nor can it be issued in a case of a soldier who has deceased. Ibid., par. 1102.
1 DISPOSITION OF EFFECTS.
When a soldier is killed in action, or dies at any post, hospital, or station, it shall
be the duty of his immediate commander to secure his effects and to prepare the
inventory required by the one hundred and twenty-sixth article of war, according
to prescribed form and to notify nearest relative of the fact of death. Duplicates of
the inventory, with final statements, will be forwarded direct to the Adjutant-General
of the Army. Par. 175, A. R., 1901.
MILITARY LAWS OF THE UNITED STATKS. 531
officer all the effects of such deceased officers or soldiers
not so accounted for and delivered.1 One hundred arid
twenty-seventh Article of War.
EXPENSES OF TRANSPORTATION' AND BURIAL.
1416. To enable the Secretary of War, in his discretion,
to cause to be transported to their homes the remains of v.
officers and soldiers who die at military camps or who are
killed in action or who die in the field at places outside of
the limits of the United States, one hundred thousand dol-
lars.' Act of March 3, 1899 (30 Stat. Z., IMS).
1417. In all cases where an officer or an enlisted man in Reimburse-
in CUT oi
either the Army. Navy. Marine Corps of the United States,
or contract surgeon or trained nurse in the employ of the
Government, has died while on duty away from home
since the first day of January, eighteen hundred and ninety-
1 Should the effects of a deceased soldier not be claimed within thirty days, they
will be sold by a council of administration under the authority of the post com-
mander, an«:l the proceeds transferred to the commander of the company to which
the deceased belonged, by whom they will be deposited with a paymaster to the
credit of the United States. Duplicate receipts will be taken, one of which will be
sent direct to the Adjutant-General of the Army and the other retained with the
company records. Par. 176, A. R., 1901.
In all'cases of sale by a council of administration, a detailed statement of the pro-
ceeds, duly certified by the council and commanding officer, will accompany the
paymaster's receipt forwarded by the company commander to the Adjutant-Ge'neral
of the Army. The statement will be indorsed: "Report of the proceeds of the
effects of , late of Company , Regiment of , who died
at , the day of , "." Par. 177, Ibid.
The effects will be delivered, when called for, to the legal representatives of the
deceased, and the receipts therefor forwarded to the Adjutant-General of the Army.
Applications for arrears of pay and proceeds of sale of effects of deceased soldiers
should be addressed to the Auditor for the War Department, Washington, D. C.,
who settles such accounts. Par. 178, ibid.
In the settlement of the accounts of deceased soldiers, the accounting officers dis-
pense with administration, and, as it were, administer themselves, paying to the
persons entitled such amounts as may be found to be due the deceased in a final set-
tlement of his accounts with the United States. 3 Compt. Dec., 197.
FUNERAL EXPE
The remains of deceased soldiers will be decently inclosed in coffins and trans-
ported by the Quartermaster's Department to the nearest military post or national
cemetery for burial unless the commanding officer deem burial at the place of death
to be proper, when a report of the fact will be made to the Adjutant-General of the
Army. The expense of transporting the remains is payable from the appropriation
for Army transportation; other expenses of burial are limited to $15 for noncom-
missioned officers and $10 for private soldiers. Par. 162, A. R., 1895. See also Cir-
cular 9, A. (T. O., 1900, note to paragraph 1339, ante.
The annual acts of appropriation since that of August 8, 1846 (9 Stat. L., 68), have
contained provision for the expenses of interment of noncommissioned officers and
soldiers. The act of July 8, 1898 (30 Stat. L. , 730), and subsequent acts of appropria-
tion have made provision for transporting to their homes the remains of officers and
soldiers who die at military camps or who are killed hi action or who die in the field
at places outside the territorial limits of the United States.
? The acts of June 6, 1900 (31 Stat. L., 631), and Mar. 3, 1901 (ibid., 1025), con-
tained the same provision.
532 MILITAEY LAWS OF THE UNITED STATES.
eight, and the remains have been taken home and buried
at the expense of the family or friends of the deceased,
the parties who paid the cost of transportation and bury-
ing such remains shall be repaid at the expense of the
United States by the Secretary of the Treasury, not to
exceed what it would have cost the United States to have
transported the remains to their homes. 1 Act of March $,
1899 (30 Stat. Z., m5).
Transport a- 1418. To enable the Secretary of War, in his discretion,
tion of remains
of enlisted men to cause to be transported to their homes the remains of
and civilian em-
plMa626 1900 v clvl^ian employees of the Army, who have died, or may
si, p. 213; hereafter die, while in the employ of the War Department
in Cuba, Porto Rico, Hawaii, and the Philippines, includ-
ing the remains of any honorably discharged soldiers who
are entitled under the terms of their discharge to return
transportation on Government transport arid who die while
on said transport, the sum of one hundred thousand dol-
lars, which is hereby appropriated and made immediately
available for the above purpose as long as may be required.
Act of May 26, 1900 (31 Stat. Z., 213).
1 The terms of the act of appropriation authorizing the payment of certain expenses
of burial in the case of enlisted men who die "while on duty," have been held by
the Comptroller of the Treasury to prohibit the payment of such expenses in the
case of a soldier who was killed while attempting to run the guard. VI Compt. Dec.,
794; held similarly as to a soldier who died at his home, ibid., 343; of a soldier who
died in confinement, ibid., 453; and of a soldier who had once been buried, ibid., 485.
The expense of burial in the case of an enlisted man, as establised at $35 by para-
graph 162, A. R., 1895, as amended by G. 0. 141, A. G. O., 1898, "will be limited
to the cost of the coffin and the reasonable and necessary expense of preparation of
the remains for burial, and will not include such items as: For guarding remains,
expense of services of clergyman or minister, music by band or choir, flowers, cost
or hire of pall to be used with horse, tombstone, crape or gloves for pallbearers, and
expense of grave site where the remains are sent home at the request of relatives."
Circular 9, A. G. O., 1900
CITAJPTER XXX.
THE TROOPS OF THE LINE.
TROOPS, BATTERIES, COMPANIES.
Par.
1419-1428. Cavalry.
1429-1444. The artillery corps.
1445-1451. Infantry.
1452. Engineer troops.
Par.
1453. Maximum strength.
1454. Vacancies; how filled.
1455, 1456. The same.
1457. Company cooks.
CAVALRY.
1419. Cavalry regiment.
1420. Colored regiments.
1421. Dismounted cavalry.
1422. Sergeant-major and quartermaster-
sergeants, pay.
1423. Details, regimental staff, etc.
1424. Band.
1425. Squadron staff, pay.
1426. Veterinarians.
1427. Troops.
1428. Increase in strength.
1419. Each regiment of cavalry shall consist of one colo- F
nel, one lieutenant-colonel, three majors, fifteen captains, 2>gec3.1i&s£]S'.8.
fifteen first lieutenants, and fifteen second lieutenants;
two veterinarians, one sergeant-major, one quartermaster-
sergeant, one commissary-sergeant, three squadron
sergeants-major, two color-sergeants with rank, pay, and
allowances of squadron sergeant-major, one band, and
twelve troops organized into three squadrons of four
troops each.1 Sec. #, 'act of February <2, 1901 (30 Stat. Z.,
1 This enactment replaces section 1102, Revised Statutes, and section 2, act of March
2, 1899, inpari materia. Section 28 of the act of February 2, 1901 (31 Stat. L., 755),
contained the requirement that "vacancies in the grade of field officers and captain
created by this act in the cavalry, artillery, and infantry shall be filled by promo-
tion, according to seniority in each branch, respectively. For the method of filling
vacancies created by the act of February 2, 1901, in the grades of first and second
lieutenants, see paragraph 1455, post.
Of the several cavalry regiments now composing the peace establishment, the first,
a regiment of dragoons, was authorized by the act of March 2, 1833 (4 Stat. L., 652).
A second regiment c f dragoons was authorized by the act of May 23, 1836 (5 Stat. L.,
32). The second regiment of dragoons was converted into a regiment of riflemen by
the act of August 23, 1842 (5 Stat. L., 512), but was reconverted into a regiment of
dragoons by the act of April 4, 1844 (5 Stat. L., 654). A regiment of mounted rifle-
men was added to the establishment by the act of May 19, 1846 (9 Stat. L., 13). Two
regiments of cavalry (known as the First and Sticond) were authorized by the act of
533
534 MILITARY LAWS OF THE UNITED STATES.
^colored regi- i420. The enlisted men of two regiments of cavalry shall
TjSSB^fc* be colored men-
Xor 1 tOi K ^h
Dismounted 1421. Any portion of the cavalry force may be armed
July 28, 1866, s. and drilled as infantry, or dismounted cavalry, at the dis-
'sec.'fio5B. s. cretion of the President.
jo?,er|S?i™- 1422> ^e regimental sergeant-major and tEe regimental
t6MSar?ha2 ^899' (luar^ermaster-sergeant provided for in this section shall
s. 2, v. so, p. 977. ' have the pay and allowances of ordnance sergeants. Sec.
2, act of March 2, 1899 (30 Stat. Z., 977).
Defcuis.^ ^ 2 1423. Of the officers herein provided, the captains and
v. si, p. 748. ' 'lieutenants not required for duty with the troops shall be
available for detail as regimental and squadron staff officers
and such other details as may be authorized by law or
regulations.1 Sec. 2, act of February®, 1901 (31 Stat. Z.,
March 3, 1855 (10 Stat. L., 635). A third regiment of cavalry was organized by order
of the President on May 4, 1861, confirmed by the act of July 29, 1861 (12 Stat. L.,
279). In accordance with the authority conferred by the act of August 3, 1861, the
six mounted regiments of the Army were consolidated into one corps and designated
as follows:
The First Regiment of Dragoons, as the First Cavalry.
The Second Regiment of Dragoons, as the Second Cavalry.
The Regiment of Mounted Riflemen, as the Third Cavalry.
The First Regiment of Cavalry, as the Fourth Cavalry.
The Second Regiment of Cavalry, as the Fifth Cavalry.
The Third Regiment of Cavalry, as the Sixth Cavalry.
Four regiments of cavalry, the Seventh, Eighth, Ninth, and Tenth, the Ninth and
Tenth composed of colored men, were added to the establishment under the authority
conferred by the act of July 28, 1866 (14 Stat. L., 332) ; the Eleventh, Twelfth, Thir-
teenth, Fourteenth, and Fifteenth were added by section 2, act of February 2, 1901
(31 ibid., 748).
1 THE REGIMENTAL, SQUADRON, AND BATTALION STAFF.
The staff of a regiment consists of the adjutant, the quartermaster, and the com-
missary, and they will be so designated respectively. They will be appointed by the
regimental commander, who will at once report his action to the Adjutant-General
by telegraph; the appointment of the quartermaster and commissary to be made
subject to the approval of the Secretary of War. These appointments will not be
antedated and will take effect on the day on which actually made. An officer will
be entitled to the pay pertaining to his appointment from the date he enters upon
duty under it. Squadron and battalion adjutants of cavalry and infantry will be
appointed by the regimental commander upon the recommendation of the squadron
and battalion commanders.
The adjutant, quartermaster, and commissary may hold office for four years, and
the squadron and battalion adjutants and quartermasters for two years and no longer.
They will not be eligible for a second tour of such duty, nor for appointment or
reappointment to either position, except to serve an unexpired term of four or two
years; but the time an adjutant or quartermaster of a regiment may have previously
served as such, with the rank of lieutenant, and any period an officer may have
served as squadron or battalion adjutant, will not be included in computing the four
years for which he may hold the office of a regimental staff officer. Par. 234, A. R.
1895 (Par. 260, A. R. 1901), G. O. No. 16, A. G. O., 1899.
Staff appointments in a regiment are restricted to officers on duty with the regi-
ment and who are not serving at a school of instruction. Should the* regimental
commander desire to appoint an officer absent from the regiment, he may apply for
orders for such officer to join; but the officer must join before the appointment can
be made. Par. 262, A. R. 1901, G. O. No. 116, A. G. O., 1899. Medical officers are
no longer attached to regiments on the peace establishment.
MILITARY LAWS OF THE UNITED STATES. 535
1424. Each cavalry band shall consist of one chief J.andv „
•* JM&rcn 2, loyy,
musician, one principal musician, one drum-major, Who8-2>v-30'p-977-
shall have the pay and allowances of a first-sergeant, four
sergeants, eight corporals, one cook, and eleven privates.1
Sec. 2, act of March 2, 1899 (30 Stat. Z., ,977).
1425. Squadron adjutants shall receive eighteen hundred oJS^pay stafl
dollars per annum and the allowances of first lieutenants ;2 y6^2^1^' 8>
squadron quartermasters and commissaries shall receive
sixteen hundred dollars per annum and the allowances of
second lieutenants.2 Sec. 2, act of February 2, 1901 (31
Stat. Z., 748).
1426. The grade of veterinarian of the second class in Jete nnanans.
cavalry regiments, United States Army, is hereby ab°l-2%^Vpi9oiV
ished, and hereafter the two veterinarians authorized for 81» P- **•
each cavalry regiment and the veterinarians authorized
for the Artillery Corps shall receive the pay and allow-
ances of second lieutenants, mounted.3 Sec. 20, act of
February 2, 1901 (31 Stat. Z., 763); act of March 2, 1901
(ibid., 901).
1427. Each troop of cavalry shall consist of one captain,
one first lieutenant, one second lieutenant, one first ser-
geant, one quartermaster sergeant, six sergeants, six cor-
porals, two cooks, two farriers and blacksmiths, one
saddler, one wagoner, two trumpeters, and forty-three
privates, the commissioned officers to be assigned from
those hereinbefore authorized.4 Sec. 2, act of February 2,
1901 (31 Stat. Z., 748).
1428. The President, in his discretion, may increase the , .
number of corporals in any troop of cavalry to eight, and 2> Vi p- 748-'
the number of privates to seventy-six, but the number of
enlisted men authorized for the whole Army shall not at
any time be exceeded. Sec. #, act of February 8, 1901
(31 Stat. Z., 748).
Section 2 of the act of February 2, 1901, contains the requirement that "each
cavalry band shall be organized as now provided by law."
- For regulations respecting the detail and term of service of squadron and battalion
staff officers see note to paragraph 1423, ante.
3 This enactment replaces section 1102, Ee vised Statutes, and section 2, act of March
2, 1899. 30 Stat. L., 977.
4 This enactment replaces section 1103, Revised Statutes, and section 2, act of March
2, 1899. 30 ibid., 977.
Since 1883 companies of cavalry have been designated as troops. Circulars 8 and
9, A. G. O., of 1883. By General Orders, No. 79 and 120, of 1890, the enlisted men
of Troops L and N of each regiment of cavalry were distributed among the other
troops. By General Orders, No. 27, of 1898, issued at the outbreak of the war with
Spam, the skeletonized troops were reestablished and restored to the status occupied
by them prior to the skeletonization in 1890.
536
MILITARY LAWS OF THE UNITED STATES.
THE ARTILLERY CORPS.1
Par.
1429. Organization.
1430. The same, coast and field artillery.
1431. Composition.
1432. Officers on one list.
1433. Increase, how effected.
1434. Details, staff duty.
1435, 1436. Veterinarians.
Par.
1437, 1438. Company, coast artillery
1439, 1440. Battery, field artillery.
1441. Band.
1442. Restriction on enlisted force.
1443. Electrician sergeants.
1444. Gunners, increased pay.
4, v. si, p. 749.
Feba2izi90ins 1429> The regimental organization of the artillery arm
3, v. si, p. 748. of ^e United States Army is hereby discontinued, and
that arm is constituted and designated as the artillery
corps. It shall be organized as hereinafter specified and
shall belong to the line of the Army. Sec. 3, act of Feb-
ruary 2, 1901 (31 Stat. Z., 748).
1430. The artillery corps shall comprise two branches —
e coast artillery and the field artillery. The coast artil-
lery is defined as that portion charged with the care and
use of the fixed and movable elements of land and coast for-
tifications, including the submarine and torpedo ~ defenses;
and the field artillery as that portion accompanying an
army in the field, and including field and light artillery
proper, horse artillery, siege artillery, mountain artillery,
and also machine-gun batteries: Provided, That this shall
not be construed to limit the authority of the Secretary of
War to order coast artillery to any duty which the public
service demands, or to prevent the use of machine or other
field guns by any other arm of the service under the direc-
tion of the Secretary of War. Sec. 4i ac^ °f February 2,
1901 (31 Stat. Z., 749).
PoTsu!oSme;COIn" 143L The artillery corps shall consist of a chief of artil-
e v63i 2p l?49' s' lery ' wno §hall be selected and detailed by the President
1 At the general reduction of the Army, effected in pursuance of the act of March
2, 1821 (3 Stat. L., 615), the artillery was consolidated into four regiments of nine
companies each, one of which, in each regiment, was to be designated and equipped
as light artillery. The Ordnance Department was merged in the artillery, a super-
numerary captain, for ordnance duty, was added to each regiment, and the President
WBL authorized "to select from the regiments of artillery such officers as may be
necessary to perform ordnance duties who, while so detached, shall be subject only
to the orders of the War Department." The Ordnance Department was separated
from the artillery by the act of May 25, 1832 (4 Stat. L., 605). One company was
added to each regiment by the act of July 5, 1838 (5 Stat. L., 256) , and two companies
by section 18 of the act of March 3, 1847 (9 Stat. L., 184), making twelve companies in
all.- The act of March 3, 1847, authorized the President to designate an additional
company in each regiment to be armed and equipped as light artillery. The fifth
regiment was added, as a regiment of light artillery, by order of the President, on
May 5, 1861, the organization being confirmed by the act of July 29, 1861 (12 Stat.
L., 279). The sixth and seventh regiments were added, and the organization of the
first five regiments modified, by the act of March 8, 1898 (30 Stat. L., 261). This sec-
tion replaces sections 1099-1101, Pvevised Statutes, the act of March 8, 1898 (30 ibid.,
261), and section 3, act of March 2, 1899 (ibid., 977).
MILITARY LAWS OF THE TOTTED STATES. 537
from the colonels of the corps of artillery, to serve on the
staff of the general officer commanding the Army, and
whose duties shall be prescribed by the Secretary of War;
fourteen colonels, one of whom shall be the chief of artillery ;
thirteen lieutenant-colonels, thirty-nine majors, one hun-
dred and ninety-five captains, one hundred and ninety-five
first lieutenants, one hundred and ninety-five second lieu-
tenants; veterinarians1 * * * ; twenty-one sergeants-
major with the rank, pay, and allowances of regimental
sergeants-major of infantry ; twenty-seven sergeants-major
with the rank, pay, and allowances of battalion sergeants-
major of infantry; one electrician sergeant to each coast-
artillery post having electrical appliances; thirty batteries
of field artillery, one hundred and twenty-six batteries of
coast artillery, and ten bands organized as now authorized
by law for artillery regiments. Sec. 6, act of February 2,
1901 (31 Stat. Z., 749).
1432. All officers of artillery shall be placed on one list, lis?ffic
in respect to promotion, according to seniority in their 6; v?3i,2p.1m s'
several grades, and shall be assigned to coast or to field
artillery according to their special aptitude for the respec-
tive services. Sec. 5, act of February 2, 1901 (31 Stat. Z.,
743).
1433. The increase herein provided for the artillery shall eflStST
be made as follows: Not less than twenty per centum 9 fv?3i,Vw9.' §
before July first, nineteen hundred and one, and not less
than twenty per centum each succeeding twelve months
until the total number provided for shall have been
attained. All vacancies created or caused by this act shall
be filled by promotion according to seniority in the artil-
lery arm.2 Second lieutenants of infantry and cavalry
may, in the discretion of the President, be transferred to
the artillery arm, taking rank therein according to date
of commission, and such transfers shall be subject to
approval by a board of artillery officers appointed to pass
upon the capacity of such officers for artillery service:
Provided, That the increase of officers of artillery shall be
only in proportion to the increase of men. Sec. 9, act of
February 2, 1901 (31 Stat. Z., 749).
1434. The captains and lieutenants provided for in this ^^2,' 1901, s.
section, not required for duty with batteries or companies, 6> v- 31> p- 749>
shall be available for duty as staff officers of the various
1 Added by act of March 3, 1901 (31 Stat. L., 901) .
2 For method of filling vacancies in the grade of lieutenant created by this act see
section 28, act of February 2, 1901 (31 Stat. L., 755), paragraph 1454, post.
538 MILITARY LAWS OF THE UNITED STATES.
artillery garrisons and such other details as may be author-
ized by law and regulations. l Sec. 6, act of February 2,
1901 (31 Stat. Z., 749).
Flbe2ini9oinv. 1435> Twelve of the veterinarians herein provided for
i96ip'v5ii pa9bi' ma7 be assigned to the artillery. Act of February 2, 1901
' (31 Stat. L., 753); act of March 2, 1901 (ibid., 901).
J^ennarians. 1433 Hereafter * * * the veterinarians authorized
MarV3 wbf V^ -^or ^e Artillery Corps shall receive the pay and allowances
P. 901. Of secon(i lieutenant, mounted. Sec. W, act of February 2,
1901 (31 Stat. L., 753); act of March 3, 1901 (ibid., 901).
Battery, coast 1437. Each company of coast artillery shall be organized
7 via 2> 74?1' s' as *s now Prescrrt>ed by law for a battery of artillery: Pro-
'sec.iibo,k.s. vided, That the enlisted strength of any company may be
fixed, under the direction of the Secretary of War, accord-
ing to the requirements of the service to which it may be
assigned. Sec. 7, act of February 2, 1901 (31 Stat. L. , 749).
The same. 1438. Each battery of (coast) artillery shall consist of one
Afflr 2 l&QQ s
3, v. so, p. 977.'" captain, one first lieutenant, one second lieutenant, one
Sec. 1100, R.S. r
tirst sergeant, one quartermaster-sergeant, who shall nave
the rank, pay, and allowances of a sergeant, eight sergeants,
twelve corporals, two musicians, two mechanics, who shall
have the pay and allowances of sergeants of artillery, two
cooks, and fifty-two privates. Sec. 3, act of March #, 1899
(30 Stat. L., 977).
Battery, field 1439, Each battery of field artillery shall be organized
s v63i2' l?ll' s' as *s now prescribed by law, and the enlisted strength
thereof shall be fixed under the direction of the Secretary
of War. Sec. 8, act of February 2, 1901 (31 Stat. L. , 749).
MarS2mi899 s 1440> ^ac^ Battery °^ ^e^ artillery shall consist of one
MB's caP^am? one ^rs^ lieutenant, one second lieutenant, one
first sergeant, one stable sergeant, one quartermaster-ser-
geant, six sergeants, twelve corporals, four artificers, two
musicians, two cooks, and fifty-one privates. Sec. 3, act
of March 2, 1899 (30 Stat. Z., 977).
Mard2 1899 s 1441. Each artillery band shall consist of one chief rnu
3, v. so, p. 977.' sician, one chief trumpeter, one principal musician, one
drum-major, who shall have the rank, pay, and allowances
of a first sergeant, four sergeants, eight corporals, one
cook, and eleven privates. Sec. 3, act of March 2, 1899
(30 Stat. L., 977).
ennSSCmen on 1442> ^he aggregate number of enlisted men for the
6 v63i2' I<TW s artillery as provided for under this act shall not exceed
Section 5 of the act of March 2, 1899 (30 Stat. L., 978), contained the requirement
that the additional second lieutenants attached to each regiment of artillery should
be transferred to other arms where vacancies existed, without loss of relatiye rank,
leaving but one second lieutenant in each battery of artillery therein authorized.
MILITARY LAWS OF THE UNITED STATES. 539
eighteen thousand -nine hundred and twenty, exclusive of
electrician sergeants.1 Sec. 6, act of February 2 1901,
(31 Stat, L.,749).
1443. In addition to the enlisted men specified there ge^tricianser"
shall be one electrician sergeant to each post garrisoned g^^isg, s.
by coast artillery having electric appliances, who shall
have the pay and allowances of an ordnance sergeant.1
Sec. 3, act of March 2, 1899 (30 Stat. L., 978).
1444. First-class gunners shall receive two dollars a payunners> extra
month and second-class gunners one dollar per month in? v6^2^1^; s>
addition to their pay.2 Sec. 7, act of February #, 1901
(31 Stat. Z., 749).
INFANTRY.
Par.
1445. Infantry regiment.
1446. Colored regiments.
1447. Details, regimental staff, etc.
1448. Band.
Par.
1449. Battalion staff, pay.
1450. Companies.
1451. Increase.
1445. Each regiment of infantry shall consist of one meaftantry regi"
colonel, one lieutenant-colonel, three majors, fifteen cap- 10Fvb3i2p/j§io s'
tains, fifteen first lieutenants, and fifteen second lieuten- sec. no6,u.s.
ants, one sergeant-major, one quartermaster-sergeant, one
commissary-sergeant, three battalion sergeants-major, two
color-sergeants, with rank, pay, and allowances of bat-
talion sergeants-major, one band, and twelve companies,
organized into three battalions of four companies each.3
Sec. 10, act of February 8, 1901 (31 Stat. Z., 750).
1446. The enlisted men of two regiments of infantry mg^red re^-
shall be colored men. 4> v. 14 p m ^S^t.l
1 For duties and methods of appointment of electrician sergeants see paragraphs
100-114, Army Regulations of 1901.
2 Gunners become entitled to this increase from the date of the passage of the act
authorizing it.
3 This enactment replaces section 1106, Revised Statutes, and section 4, act of March
2, 1899 (30 Stat. L., 977) , in pnri materia. Section 28 of the act of February 2, 1901
(31 Stat. L., 755), contained the requirement that "vacancies in the grade of field offi-
cers and captain created by this act in the cavalry, artillery, and infantry shall be
filled by promotion according to seniority in each branch respectively. ' ' For method
of filling vacancies created by that enactment in the grades of first and second
lieutenant, see paragraphs 1455 and 1456, post.
The First Regiment of infantry was authorized by the act of April 30, 1790 (1 Stat.
L., 119) , the Second by the act of March 3, 1791 (ibid., 222), the Third and Fourth
by the act of May 30, 1796 (ibid., 483) , the Fifth, Sixth, and Seventh regiments by
the act of June 26, 1812 (2 Stat. L., 764), and the number of regiments of infantry
was fixed at seven by the act to reduce and fix the military establishment, approved
March 2, 1821. The Eighth Regiment was added by the act of July 5, 1838, and the
President was authorized, "whenever he may deem it expedient, to cause not exceed-
ing two of the regiments of infantry to be armed and equipped as regiments of rifle-
men, and one other of the regiments of infantry to be armed and equipped and to
serve as a regiment of light infantry." The Ninth and Tenth regiments were author-
540 MILITABY LAWS OF THE UNITED STATES.
Fet 1901 s 1447. Of the officers herein provided, the captains and
10, v. 31, p. 750. lieutenants not required for duty with the companies shall
be available for detail as regimental and battalion staff
officers and such other . details as may be authorized by
law or regulation.1 Sec. 10, act of February 0, 1901 (31
Stat. Z., 750.
March 2, 1899, 1448. Each infantry band shall consist of one chief musi-
s. 4, v. so, p. 977. cjan^ one principal musician, one drum-major, who shall
have the rank, pay, and allowances of a first sergeant, four
sergeants, eight corporals, one cook, and twelve privates.2
Sec. 4, act of March 8, 1899 (30 Stat. Z., ,977).
^Battalion staff 1449 Battalion adjutants shall receive one thousand
lofv.^'ifpAso1' s' eight hundred dollars per annum, and the allowances of
first lieutenant^ mounted; battalion quartermasters and
commissaries shall receive one thousand six hundred dol-
ized by the act of March 3, 1855 (10 Stat. L., 703 ). The Eleventh to the Nineteenth
regiments, inclusive, were organized by order of the President on May 4, 1861, the
organization being confirmed by the act of July 29, 1861 ( 12 Stat. L. , 279) . Twenty-
five regiments, from the Twentieth to the Forty-fifth, inclusive, were authorized by
the act of July 28, 1866, of which four, from the Thirty-eighth to the Forty-first,
inclusive, were to be composed of colored men, and four, from the Forty-second to
the Forty-fifth, inclusive, were to be composed of men who had been wounded in
the line of duty and were to constitute a Veteran Reserve Corps. At the reduction
effected in pursuance of section 2 of the act of March 3, 1869 (15 Stat. L., 318), the
number of infantry regiments was reduced to twenty-five. In effecting the consoli-
dation required by the act above cited, the designations of the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Twen-
tieth, and Twenty-third regiments were not changed; the Eleventh Regiment was
formed, by consolidation, from the Twenty-fourth and Twenty-ninth; the Fourteenth
from the Fourteenth and Forty-fifth; the Fifteenth from the Fifteenth and Thirty-
fifth; the Sixteenth from the Eleventh and Thirty-fourth; the Seventeenth from the
Seventeenth and Forty-fourth ; the Eighteenth from the Eighteenth and Twenty-
fifth; the Nineteenth from the Nineteenth and Twenty-eighth; the Twenty-first from
the Twenty-first and Thirty-second; the Twenty-second from the Twe'nty-second
and Thirty-first; the Twenty-fourth from the Thirty-eighth and Forty-first; the
Twenty-fifth from the Thirty-ninth and Fortieth. Five new regiments, from the
Twenty-sixth to the Thirtieth, inclusive, were added by section 10, act of February
2, 1901 (31 Stat. L., 750).
The regiments organized prior to the 4th of May, 1861, were composed of ten com-
panies each; those organized by Executive order of that date were each composed
of three battalions of eight companies each. The organization prescribed by the
act of July 28, 1866, fixed the organization of an infantry regiment at ten companies,
of a cavalry regiment at twelve companies, and a regiment of artillery at the same
number.
By the act of April 26, 1898 (30 Stat. L., 364), a battalion organization was adopted
for the infantry, each regiment being composed of two battalions of four companies
each, and of two skeleton, or unmanned companies. Upon a declaration of war by
Congress, the President was authorized to organize a third battalion, to be composed
of the two skeleton companies and two additional companies. By section 4 of the
act of March 2, 1899 (30 Stat. L., 977), the regimental organization of infantry was
made to consist of three battalions of four companies each; by section 15 of the same
enactment, however, the regimental organization, as it existed on April 1, 1898, was
required to be restored by the discharge of supernumerary officers and enlisted men.
The artillery regiments were exempted from this reduction.
1 For regulations respecting the detail and tour of duty of regimental and battalion
staff officers, see note to paragraph 1423, antf.
2 Section 10, act of February 2, 1901 (31 Stat. L., 750), contained the requirement
that "each infantry band shall be organized as now required by law."
MILITARY LAWS OF THE UNITED STATES. 541
lars per annum and the allowances of second lieutenants,
mounted. Sec. 10, act of February #, 1901 (31 Stat. L.,
750).
1450. Each infantry company shall consist of one cap- a^fantry com'
tain, one first lieutenant, one second lieutenant, one first £ft-a
&6C* 1 lUi , n. S.
sergeant, one quartermaster-sergeant, four sergeants, six
corporals, two cooks, two musicians, one artificer, and
forty-eight privates, the commissioned officers to be as-
signed from those hereinbefore authorized.1 Ibid.
1451. The President, in his discretion, may increase the
number of sergeants in any company of infantry to six,
the number of corporals to ten, and the number of pri-
vates to one hundred and twent}T-seven, but the total num-
ber of enlisted men authorized for the whole Army shall
not at any time be exceeded. Ibid.
ENGINEERS.
1452. The enlisted force (of the Corps of Engineers)
provided in section eleven of this act and the officers serv- 1901 s
ing therewith shall constitute a part of the line of the 22> v- ^' >p- 75*- '
Army.2 Sec. 2%, act of February 2, 1901 (31 Stat. L. , 764).
MAXIMUM STRENGTH.
1453. The President is authorized to maintain the enlisted gtrenath * m u m
force of the several organizations of the Army at their o/ebof 19^k s-
» OU, V. OJLj p.. /OO.
maximum strength as fixed by this act during the present
exigencies of the service, or until such time as Congress
may hereafter otherwise direct.3 Sec. 30, act of February
2, 1901(31 Stat. Z., 756).
VACANCIES.
1454. Vacancies in the grade of field officers and captain ho^aficiied cies;
created by this act, in the cavalry, artillery, and infantry 28F^' p19^ s-
shall be filled by promotion according to seniority in each
branch respectively. Sec. 28, act of February 2, 1901 (31
Stat. Z., 755].
1 See note to paragraph 1445, ante.
2 For requirements of law in respect to the battalions of engineer troops, see the
title Enlisted Men of Engineers in the chapter entitled THE ENGINEER CORPS.
3 For the maximum strength referred to in this section, see, as to the cavalry troop,
section 2, act of February, 1901 (31 Stat. L., 748), paragraph 1427, ante; as to the
artillery arm, see section 6, ibid., paragraphs 1437-1440, ante; as to the infantry com-
pany, see section 10, ibid., paragraphs 1450, 1451, ante; as to the engineer company, see
section 11, ibid., paragraph 961, ante; for a similar authority to increase the strength
of the several organizations in time of war, see the act of April 26, 1898 (30 Stat. L.,
364). Section 36, act of February 2, 1901 (31 Stat. L., 757), contains the requirement
that the "total of the enlisted men of the line of the Army, together with the native
force therein authorized, shall not exceed, at any tune, one hundred thousand men."
542
MILITARY LAWS OF THE UNITED STATES.
The same.
Ibid.
1455. Vacancies existing after the promotions have been
made shall be provided for as follows: A sufficient number
shall be reserved in the grade of second lieutenant for the
next graduating class at the United States Military Acad-
emy. Persons not over forty years of age who shall have,
at any time, served as volunteers subsequent to April
twenty -first, eighteen hundred and ninety-eight, may be
ordered before boards of officers for such examination as
may be prescribed by the Secretary of War, and those
who establish their fitness before these examining boards
may be appointed to the grades of first or second lieutenant
in the Regular Army, taking rank in the respective grades
according to seniority as determined by length of prior
commissioned service; but no person appointed under the
provisions of this section shall be placed above another in
the same grade with longer commissioned service, and
nothing herein contained shall change the relative rank of
officers heretofore commissioned in the Regular Army.1
TUd.
1456. Enlisted men of the Regular Army or volunteers
may be appointed second lieutenants in the Regular Army
to vacancies created by this act, provided that they shall
have served one year under the same conditions now
authorized by law for enlisted men of the Regular Army.
lUd.
COMPANY COOKS.
M°a°rkS2, 1899, s. 1457- The GQC^> authorized by this act shall have the
9, v. so, p. 979. pay an(j allowances of sergeants of infantry.2 -Sec. 9, act
of March 0, 1899 (30 Stat. L., 979).
1 See also the act of March 2, 1901 (31 Stat. L., 900), paragraph 578, ante.
2 This enactment repeals and replaces the act of July 7, 1898 ( 30 Stat. L. , 721 ) , which
authorized the enlistment of one cook for each troop, battery, and company in the
Kegular and Volunteer armies of the United States. The person so enlisted as cook
was to ' ' take rank as and be allowed the pay of a corporal of the arm of the service
to which he belongs, and whose duties in connection with the preparation and serv-
ing of the food of the enlisted men of the company, battery, or troop, and with the
supervision and instruction of enlisted men hereby authorized to be detailed to assist
him, shall be prescribed in the regulations for the government of the Army."
The same.
Ibid.
CHAJPTEH XXXI.
THE UNITED STATES MILITARY ACADEMY— THE ARMY
WAR COLLEGE— THE SERVICE SCHOOLS.
Par.
1458-1513. The United States Military
Academy.
1514. The Army War College.
1515. The Engineer School.
Par.
1516, 1517. The Artillery School.
1518. The Infantry and Cavalry School.
1519. The Cavalry and Light Artillery
School.
THE MILITARY ACADEMY.
Par.
1458-1478. Organization, academic and
military staff.
1479-1494. The Corps of Cadets.
1495,1496. Courts-Martial: Hazing.
1497-1500. The Board of Visitors.
1501-1507. Leaves of absence, purchases,
contingent funds.
Par.
1508. The Military Academy band.
1509-1511. General Army service men,
Quartermaster's Department.
1512. The Cullum Memorial.
1513. Chapels.
ORGANIZATION: ACADEMIC AND MILITARY STAFF.
Par.
1458. Officers, professors, and instructors.
1459. Assignment of law professor.
1460. Associate professor of mathematics.
1461. Chaplain, appointment and tenure.
1462. Supervision of the Academy.
1463. Appointment of officers and pro-
fessors.
1464. Selection of officers.
1465. Kestriction on detail of graduates.
1466. Rank of superintendent and com-
mandant.
1467. Superintendent to command.
1468. The same, pay and allowances.
Par.
1469. The commandant of cadets.
1470. Command of academic staff.
1471. Professors, pay and allowances.
1472. Master of the sword.
1473. The same, retirement.
1474. Assistant professors, pay and allow-
ances.
1475. The same, assistant instructors of
tactics.
1476. Librarian; assistant librarian.
1477. Adjutant.
1478. Quartermaster and commissary of
cadets.
££$£
1458. The United States Military Academy at West
Point, in the State of New York,1 shall be constituted as*01*8
1 The Military Academy was established in pursuance of authority conferred by the
act of March 16, 1802 (2 Stat. L., 137), which contained a requirement authorizing the
President to establish a corps of engineers: "The said corps, when so organized,
shall be stationed at West Point, in the State of New York, and shall constitute a
military academy. Sections 26 and .27, act of March 16, 1802 (2 Stat. L., 137). The
post of West Point ceased to be an engineer station and the control of the Military
Academy was transferred from the Chief of Engineers to such officer or officers as the
Secretary of War may assign to that duty by the act of July 13, 1866 (14 Stat. L., 92.)
543
544 MILITARY LAWS OF THE UNITED STATES.
: There shall be one superintendent; one comnian-
v18n; p.; dant °f cadets; one senior instructor in the tactics of artil-
Tiz^ifv.^p^y'i one senior instructor in the tactics of cavalry; one
c2°e;if SVv. s!1?,' seni°r instructor in the tactics of infantry ; one professor
3?v. 5?p,' anc^ one assistant professor of civil and military engineer-
'1 one Professor and one assistant professor of natural
experimental philosophy;2 one professor and one as-
c1;8itvgio6;p1829:s^stant professor of mathamatics;3 one professor and one
4?bv ^i ^iei1 assistant professor of chemistry, mineralogy, and geology; *
t^'ta^FS0116 prof essor and one assistant professor of drawings;5
^i^SeTFeb:0116 professor of modern languages;6 one assistant pro-
ii! p^i6i%ec. I' fessor of the French language; one assistant professor of
2inp. 34! Jan9' 16,' *^e Spanish language; 7 one assistant professor of law; one
one master of the sword;9 and one teacher of
.
° 1459- The Secretary of War may assign one of the
aw. Act
That the
i8Jpn6o6' !iu7ne T j udge-advocates of the Army to be professor of law. Act
i88o;v.2i;P.i63.'^y june ^ igty y8 jgtat% JT ? 60^ Provided, Th
1 The office of professor of civil and military engineering was established by section
2 of the act of April 29, 1802 (2 Stat. L., 720).
2 The office of professor of natural and experimental philosophy was established
by section 2 of the act of April 29, 1802 (2 Stat. L., 702).
3 The office of professor of mathematics was established by section 2 of the act of
April 29, 1802 (2 Stat. L., 702).
4 The office of professor of chemistry, mineralogy, and geology was established by
section 19 of the act of July 5, 1838 (5 Stat. L., 259).
5 The office of teacher of drawing, first created by Executive order, received statu-
tory recognition in section 2 of the act of April 29, 1802 (2 Stat. L., 720) . The office
of professor of drawing was established by section 3 of the act of August 8, 1846 (9
Stat. L., 161).
6 The office of teacher of French, first established by Executive regulation, received
statutory recognition in section 2 of the act of April 29, 1802 (2 Stat., L., 702). The
office of professor of French was established by section 3 of the act of August 8, 1846
(9 Stat.L., 161). The act of June 20, 1879 ( 21 Stat. L., 34) , contained the requirement
that ' ' when a vacancy occurs in the office of professor of the French language or in
the office of professor of the Spanish language in the Military Academy, both these
offices shall cease, and the remaining one of the two professors shall be professor of
modern languages; and thereafter there shall be in the Military Academy one, and
only one, professor of modern languages." On June, 30, 1882, a vacancy having
occurred in the office of professor or Spanish, the statute became operative and the
offices of professor of French .and professor of Spanish were merged, by operation
of law, in the office of professor of modern languages. The office of professor of
Spanish, created by section 2 of the act of February 15, 1857 (11 Stat. L., 161), ceased
to exist, by operation of law, on June 30, 1882, having been merged in the office of
professor of modern languages in conformity to section 4 of the act of June 20, 1879
(21 Stat. L., 34).
For notes in respect to the establishment of the offices of instructor of ordnance and
gunnery and practical military engineering, see notes 1 and 2 on page 548, post.
7 The offices of assistant professor of civil and military engineering, natural and
experimental philosophy, and mathematics were established by section 2 of the act
of April 29, 1802 (2 Stat. L., 702); that of chemistry, mineralogy and geology by sec-
tion 19 of the act of July 5, 1838 (5 Stat. L., 259)"; those of French and drawing by
section 2 of the act of August 6, 1852 (10 Stat. L., 29); that of Spanish by section 3 of
the act of February 28, 1857 (14 Stat. L., 416), and that of law by the act of January
5, 1895 (28 Stat. L., 630).
8For the status of this office see paragraph 1477, post.
9 For the status of this office see paragraph 1472, post.
MILITAEY LAWS OF THE UNITED STATES. 545
Secretary of War may, in his discretion, assign any officer
of the Army as professor of law.1 Act of June 1, 1880
(21 Stat. L., 153).
1460. There shall be appointed at the Military Academy fe^r°Sat£ag£;
f rom the Army, in addition to the professors authorized "^^and ailow.
by the existing laws, an associate professor of mathemat-anc^ngevit
ics, who shall receive the pay and allowances of a captain Pa^-ar 1 1893
mounted, and when his service as associate prof essor of 27> P- &i6'
mathematics at the Academy exceeds ten years, he shall
receive the pay and allowances of major; and hereafter
there shall be allowed and paid to the said associate pro-
fessor of mathematics ten per centum of his current'yearly
pay for each and every term of five years' service in the
Army and at the Academy : Provided, That such addition
shall in no case exceed forty per centum of said yearly
pay ; and said associate professor of mathematics is hereby
placed upon the same footing as regards restrictions upon
pay and retirement from active service as officers of the
Army. Act of March 1, 1893 (27 Stat. L., 515).
1461. The duties of chaplain at the Military Academy T$S^$gg_
shall hereafter be performed by a clergyman to be ap- erj£b 18 1896
pointed by the President for a term of four years, and the V-29>P-8-
said chaplain shall be eligible for reappointment for an
additional term or terms and shall, while so serving,
receive the same pay and allowances as are now allowed
to a captain mounted.2 Act of February 18, 1896 (29
Stat. L., 8).
SUPERVISION.
1462. The supervision and charge of the Academy shall A®J$fmVision of
be in the War Department, under such officer or officers ?<}*& c'
as the Secretary of War may assign to that duty.3 92seli33i R.S
THE ACADEMIC STAFF.
1463. The superintendent, the commandant of cadets, and ofAjerean
the professors shall be appointed by the President.4 Xhe professors-
1 The acts of June 27, 1881 (21 Stat. L., 319), and June 30, 1882 (22 Stat. L., 125),
contain a similar provision.
2 The office of chaplain was established by the act of April 4, 1818 (3 Stat. L., 426),
which authorized the appointment of a chaplain at the Military Academy, who shall
also be professor of geography, history, and ethics. By the act of February 18, 1896
(29 Stat L., 8), the professorship thus authorized was discontinued, the duties of
chaplain being performed by the officer whose appointment was authorized by that
statute, and the duty of giving instruction in history being transferred by executive
regulation to the department of law.
3 The Military Academy is withdrawn from the control and supervision of depart-
ment commanders by the terms of paragraph 208, Army Regulations of 1901.
*See, for status of these officers, paragraphs 1466, 1469, and 1471, post.
22924—08 - 35
546 MILITABY LAWS OF THE UNITED STATES.
professors, acting assistant professors, and the
is? 1 12' v1^' p! adjutant shall be officers of the Army, detailed and assigned
jps^Ap^ 29, W12, £o Sucj1 (juties by the Secretary of War, or cadets assigned
c2°iV<3Usy 6%^' by the superintendent, under the direction of the Secretary
^1818,^8.' of War.
officeerlct 1464- Tne superintendent and commandant of cadets
ne^^Vi^'p' may be selected, and all other officers on duty at the Acad-
92sec.isi4,R.s. emv maybe detailed, from any arm of the service; but the
academic staff as such shall not be entitled to any command
in the Army separate from the Academy.
beNafsteiedteto 1465< Hereafter no graduate of the Military Acade'my
emy withfif two Snall ^e assigned or detailed to serve at said Academy as
uationafter gT&^' a professor, instructor, or assistant to either, within two
v J28ly ill 1894> Jears after his graduation, and so much of the act of June
thirtieth, eighteen hundred and eighty -two, as requires a
longer service than two years for said assignments or de-
tails is hereby repealed.1 Act of July 26, 1894 (®8 Stat.
L., 151).
su^ntScu ntf 1466- The superintendent and the commandant of cadets,
dant comman 'while serving as such, shall have, respectively, the local
iwTiVi^pPlss' rank °f colonel and lieutenant-colonel of engineers.2
Sec. 1310, K.S.'
enStTc?mmand." 1467> The superintendent, and, in his absence, the next
9 i^Sj'vVp'is?'- in rank, shall have the immediate government and military
^6gs26' v84!' p' command of the Academy, and shall be commandant of the
51I'ec.i8ii B.S. military Post of West Point.3
:The act of June 30, 1882 (22 Stat. L., 123), contained the requirement that no
graduate of the Military Academy should be assigned or detailed to serve as a
professor, instructor, or assistant to either, within four years after his graduation.
2 The office of superintendent was created by section 28 of the act of March 16, 1802,
(2 Stat. L., 137), which contained the requirement that "the principal engineer and,
in his absence, the next in rank, shall have the superintendence of the Military
Academy under the direction of the .President of the United States." So much of
the act of March 16, 1802, as restricted the appointment to this office to the Corps
of Engineers was replaced by section 6 of the act of July 16, 1866 (14 Stat. L., 92),
which vested the supervision of the Academy in the War Department, under such
office or officers as the Secretary of War may assign to that duty. By the act of
January 12, 1858 (11 Stat. L., 333), the local rank of colonel of engineers was conferred
upon the superintendent.
The act of June 20, 1840 (5 Stat. L., 398), contained the requirement that the
commander of the corps of cadets should be either the instructor of infantry tactics,
of cavalry or artillery tactics, or of practical engineering; and his pay and emolu-
ments were in no case to be less than those allowed by law to the professor of mathe-
matics. By the act of June 12, 1858 (11, ibid., 333) , the pay of this officer was fixed
at that of a lieutenant-colonel.
3 The post of West Point is one of the military posts of the United States, and the
appropriation for the construction of buildings at military posts is applicable to the
erection of such quarters as are for the use of the military post at that place and
independent of the Military Academy located there. 5 Compt. Dec., 812; 3 Dig.
Dec. Sec. Compt., 216.
Expenditures for the support of the Military Academy must be limited to the
amounts appropriated in the acts for the support of the Academy, unless a contrary
purpose on the part of Congress clearly appears in its legislation. Ibid., 216.
A sum legally payable out of a specific appropriation can not be transferred to the
credit of another appropriation. But this rule does not affect the proper disburse-
MILITARY LAWS OF THE UNITED STATES. 547
1468. The commandant of the cadets shall have the i
mediate command of the battalion of cadets, and shall
instructor in the tactics of artillery, cavalry, and infantry. 33|c. m2, R. s.
1469. The superintendent of the Military Academy shall
have the pay of a colonel, and the commandant of
shall have the pay of a lieutenant-colonel.
1470. The academic staff, as such, shall not be entitled
to any command in the Army separate from the Academy. Sec- i8u,B.s.
1471. Each of the professors of the Military Academy Pay of profes-
whose service as professor at the Academy exceeds ten Feb. 23, 1373, c.
210 V. 17 p. 479.
years shall have the pay and allowances of colonel, and all sec.' 4, June 23,
other professors shall have the pay and allowances of lieu- sec. i336,k.s.
tenant-colonels;1 and the instructors of ordnance and
ment of the sum appropriated. Thus where, in the Military Academy appropriation
act, a certain amount was appropriated for models of guns and carriages, held, that
the Secretary of War was authorized to transfer this amount for disbursement to the
disbursing officer at Watervliet Arsenal, where the models were to be manufactured,
instead of leaving the disbursement to the disbursing officer at West Point. Dig.
Opin. J. A. G., par. 457.
Residents and visitors at the Academy. No person can be entitled, as a matter of right,
to enter within the limits of this post unless he be authorized to do so by the laws
of the United States, or by some officer having authority under the law to grant per-
mission to enter such limits. The Superintendent of the Academy, as commandant
of this post, has a general authority to prevent any person in civil life residing per-
manently or temporarily at the post, or occasionally resorting to the post, from
interrupting its discipline, or obstructing in any way the performance of the duties
assigned by law to the officers and cadets. In the exercise of a sound discretion, the
commandant of the post may therefore order from it any person not attached to it
by law whose presence is, in his judgment, injurious to the interests of the Academy.
And in case any person so ordered shall refuse to depart, after reasonable notice and
within a reasonable time, having regard to the circumstances of the case, I think the
Superintendent may lawfully remove him by force. Ill Opin. Att. Gen., 268-273.
When, however, the United States have leased a dwelling house within the post
belonging to them to an individual, they have no greater right than an individual
would have in respect to the ejectment of the lessee. Ibid.
No person has the right to enter the limits of the post of West Point, not even to
visit the post-office there, unless specially authorized by the laws of the United
States or by some officer having authority to grant permission. Ibid.
The Superintendent of the Military Academy is not in general authorized to arrest
and confine in the guardhouse a civilian for a mere breach of the police regulations
of the post or Academy. His proper remedy is to have the offender removed as soon
as practicable, and without unnecessary force, from the reservation. Dig. Opin. J. A.
G., par. 520.
xThe act of April 29, 1812 (2 Stat. L., 702) , conferred upon the professor of natural
and experimental philosophy the pay and emoluments of a lieutenant-colonel; and
that of major upon the professors of engineering and mathematics. The professor of
chemistry, mineralogy, and geology was placed upon the same footing, in respect to
pay and emoluments, as the professor of mathematics, by section 19 of the act of
July 5, 1838 (5 Stat. L., 259). By the act of March 3, 1851 (9 Stat. L., 594), the pay
of the professors of engineering, natural and experimental philosophy, mathematics,
and chemistry was fixed at $2,000 per annum, and that of the professors of French
and drawing at $1,500 per annum, these sums to be "in lieu of pay proper, ordinary
rations, forage, and servants." By section 2 of the act of February 16, 1857 (11 Stat.
L., 161), the pay of professor of Spanish was fixed at $2,000 per annum, subject to
the restrictions contained in the act of March 3, 1851. By section 13 of the act of
July 15, 1870 (16 Stat. L., 319), professors whose service exceeded thirty-five years
were to receive the pay and allowances of colonels; those whose service had been
less than thirty-five years, but exceeded twenty-five years, were to receive the pay
and allowances of lieutenant-colonels, and all other professors were to receive the
pay and emoluments of major. By the act of February 28, 1873 (17 Stat. L., 479),
professors whose service exceeded ten years were to receive the pay and emoluments
548 MILITAEY LAWS OF THE UNITED STATES.
science of gunnery1 and of practical engineering2 shall
have the pay and allowances of major; and hereafter there
shall be allowed and paid to the said professors ten per
centum of their current yearly pay for each and every
term of five years' service in the Army and at the Acad-
emy : Provided, That such addition shall in no case exceed
forty per centum of said yearly pay; and said professors
are hereby placed upon the same footing, as regards
restrictions upon pay and retirement from active service,
as officers of the Army.
swSter °f the 1472- The master of the sword shall hereafter act as
31^914' 1901' v' instructor of military gymnastics and physical culture at
sec. ms, K. s. f^e Military Academy, and shall have the relative rank
and shall be entitled to the pay, allowances, and emolu-
ments of a first lieutenant, mounted: Provided, however,
That whenever a vacancy shall occur in the office of master
of the sword and instructor of military gymnastics and
physical culture the said office shall cease and determine,
and the duties thereunto pertaining shall thereafter be
performed by an officer of the line of the Army to be
selected for that purpose by the Secretary of War. Act
of March 0, 1901 (31 Stat. L., 914).
piSSSET 1473. The professors of the Military Academy at West
294)Usyi3!v18i6;p. Point are placed on the same footing, as to retirement from
31s'ec.i338,B.s. active service, as officers of the Army.
of colonels, and all other professors the pay, etc. , of lieutenant-colonels. This statute
was amended by section 4 of the act of June 23, 1874 (21 Stat. L., 34) , so as to require
ten years' service as a professor at the Military Academy as a condition precedent to
receiving the pay and allowances of colonel.
The professors of the Military Academy do not belong to the staff of the Army
within the meaning of section 1205, Revised Statutes, since they have no military
rank or grade. The fact that they are authorized by the President to wear the uni-
form of the rank as of which they are paid does not invest them with such rank.
This can be given them by Congress alone. Dig. Opin. J. A. Gen., 615, par. 2.
A captain cf cavalry does not vacate his office as such by the acceptance of that of
professor of the Military Academy, there being no incompatibility in the functions
of the two offices. Ibid., par. 3.
The professors of the Military Academy at West Point are commissioned officers
of the Army, whose pay and allowances are assimilated to those of a lieutenant-
colonel and" a colonel; and in case of such disability as is described in section 4693,
Revised Statutes, they are entitled to pensions at the same rate with officers of the
rank of lieutenant-colonel. XVII Opin. Att. Gen., 359.
1 The office of instructor of ordnance and gunnery was established by the Secre-
tary of War, on the recommendation of the academic board, on December 31, 1856; the
duties of the former instructor of artillery, which were not connected with instruc-
tion in the drill regulations of the arm, being transferred to the office thus established.
By the act of June 12, 1858 (11 Stat. L., 333), the duty of instruction in the drill regu-
lationswas vested in the commandant of cadets and the assistant instructors authorized
by that enactment. An officer of ordnance was assigned to duty as instructor of
ordnance and gunnery by Special Orders, No. 31, H. Q. U. S. Military Academy on
February 27, 1857.
2 The office of instructor of practical military engineering was established by sec-
tion 2 of the act of July 20, 1840 (5 Stat. L., 397); upon the recommendation of the
Chief of Engineers, dated April 24, 1844, an officer of engineers was appointed to the
office. '
MILITARY LAWS OF THE UNITED STATES. 549
1474. Each assistant professor and each senior assistant
instructor of cavalry, artillery, and infantry tactics shall st A^g; 1812, c
receive the pay of a captain.1 ?26;SJuiyV5, isss
c. 162, s. 19, v. 5, p. 259; July 20, 1840, c. 50, s. 3, v. 5, p. 398; Aug. 6, 1852, c. 81, s. 2, v. 10, p
29- June 12, 1858, c. 156, s. 1, v. 11, p. 333; Feb. 28, 1867, c. 100, s. 3, v. 14, p. 416; Feb. 28
1873, v. 17, p. 479; Jan. 16, 1895, v. 28, p. 630. Sec. 1837, R. S.
1475. The assistant instructors of tactics commanding
cadet companies at West Point shall receive the pay and
allowances as assistant professors in the other branches of 18> p- 467-
study.2 Act of March 3, 1875 (18 Stat. L., JfiT).
1476. The librarian and assistant librarian at the Military assistant.
Academy shall each receive one hundred and twenty dollars 1»J?S, Y'IVP.?!
", ,.,. , o Sec. 1840, R.S.
a year additional pay.
THE MILITARY STAFF.
1477. The adjutant of the Military Academy shall have of Adjutant, pay
the pay of an adjutant of a cavalry regiment. 32^ai'v'9185594'
Sec. 1335, R.S.
1478. The Secretary of War is hereby directed to detail Quartermaster
. and commissary
a competent officer to act as quartermaster and commissary of cadets.
for the battalion of cadets, b}^ whom all purchases and
issues of supplies of all kinds for the cadets, and all provi- coftupplies at
sions for the mess, shall be made, and that all supplies of 19Apgi276' 1876> v>
all kinds and description shall be furnished to the cadets
at actual cost, without any commission or advance over
said cost; and such officer so assigned shall perform all the
duties of purveying and supervision for the mess, as now
done by the purveyor, without other compensation/ Act
of August 7, 1876 (19 Stat. Z., 126).
1 Assistant professors at the Military Academy are entitled to the quarters of cap-
tains. IX Opin. Att. Gen., 284. The distinction contended for at the Military
Academy between academic and military rank is not allowable in the choice of
quarters. 5 ibid., 627.
2 Section 2 of the act of July 20, 1840 (5 Stat. L., 398), contained the requirement
that the pay and emoluments of instructors in cavalry, artillery, and infantry tac-
tics should not be less than was allowed by law (captain mounted) to the assistant
professor of mathematics. This statute was replaced by the act of June 12, 1858 (11
Stat. L., 333), which conferred the pay of captain mounted upon the senior assistant
instructor in each of the arms of service.
The annual acts of appropriation for the support of the Military Academy, since
that of February 10, 1897 29 (Stat. L., 518) , have contained a pro vision for the pay of
a senior instructor in the Department of Ordnance and Gunnery. Those since March
5, 1898 (30 Stat. L., 254) , have contained a similar provision in respect to the pay of
the senior assistant in the Department of Practical Military Engineering.
3 The annual acts of appropriation from that of February 18, 1871 (16 Stat. L., 414),
to that of July 26, 1894 (28 Stat. L., 156), contained a provision authorizing the pay-
ment of $1,000 per annum for compensation of the librarian's assistant. In the acts
of February 12, 1895 (28 Stat. L., 631), and March 6, 1896 (29 Stat. L., 49), the
compensation of the librarian's assistant was fixed at $1,200 per annum.
4 The annual appropriation acts, since that of March 31, 1884, have contained a
provision for extra pay for the quartermaster and commissary of cadets at the rate
of $700 per annum, in" addition to his pay as a captain of infantry. The act of June
30, 1892 (22 Stat. L., 123), authorizes the Secretary of War to detail a commissarj
sergeant to act as assistant to the commissary of cadets.
550
M1LITAKY LAWS OF THE UNITED STATES.
THE CORPS OF CADETS.
Par.
1479. Number and appointment.
1480. Appointment in advance.
1481. Age of appointees.
1482. Qualifications for admission.
1483. Oath.
1484. Engagement for service.
1485. Pay and allowances.
1486. Promotion of graduates, additional
second lieutenants.
1487. One additional officer only to each
company.
Par.
1488. Pay of graduated cadets.
1489. Organization of corps into compa-
nies, etc.
1490. Liability to duty.
1491. No study on Sunday.
1492. Instruction in physiology, etc.
1493. The same.
1494. Deficient cadets.
Number and
appointment.
1479. The corps of cadets shall consist of one from each
4 JyU!3i p 65o' s' Congressional district, one- from each Territory, one from
sec. isi5,R.s. the District of Columbia, two from each State at large,
and thirty from the United States at large. They shall be
appointed by the President, and shall, with the exception
of the thirty cadets appointed from the United States at
large, be actual residents of the Congressional or Terri-
torial districts, or of the District of Columbia, or of the
States, respectively, from which they purport to be ap-
pointed.1 Sec. 4, act of June 6, 1900 (31 Stat. Z., 656).
xThe first authorization of the employment of cadets in the military service will
be found in the act of May 9, 1794 (1 Stat. L., 366), for raising a corps of artillerists
and engineers; the new organization was to be formed by the consolidation of the
existing corps of artillery with the additional force therein authorized, and was to
consist of four companies, to each of which two cadets were to be attached, with the
pay, rations, and clothing of sergeants of artillery. An additional regiment of
artillerists and engineers was established by the act of April 27, 1798 (ibid., 552),
with the same organization as the regiment already in service; by section 3 of the act
of March 3, 1799 (ibid., 750), the pay of cadets was fixed at ten dollars per month,
with two rations per day or their equivalent in money; by this enactment ten cadets
were allowed for each regiment of cavalry and infantry a'nd thirty-two for each reg-
iment of artillery.
The act to fix the military peace establishment, approved on March 16, 1802 (2
ibid., 132), provided for one regiment of artillerists and engineers; it was to consist
of twenty companies, to each of which two cadets were attached. By section 26 of
this enactment authority wab conferred upon the President .to establish a corps of
engineers, to which ten cadets were to be attached, and the monthly pay of the
cadets was fixed at sixteen dollars and one ration per day; by section 27, the corps
of engineers, when organized, \vas to be stationed at West Point and was to consti-
tute the Military Academy. The acts of April 12, 1808 (2 ibid., 481), and June 11,
1812 (ibid., 671), authorized additions to the military establishment; by the former,
156 cadets were provided for, and by the latter, 64; in neither case, however, was
the authorized establishment completed, nor does any considerable number of cadets
seem to have been attached to the Military Academy, as is indicated by a report of
the superintendent of January 5, 1810, at which date forty-seven cadets' were under-
going instruction at the academy. An act making further provision for the Corps
of Engineers, approved April 29, 1812 (ibid., 720), fixed the number of cadets in all
arms of the service at 250, and authorized the President, in his discretion, to attach
them, as students, to the Military Academy. The present apportionment by repre-
sentative districts was established by section 2 of the act of March 1, 1843 5 (ibid.,
604), which required cadets to be selected from the Congressional districts of the
States or Territories from which the appointments purported to have been made. By
this enactment authority was conferred upon the President to appoint ten cadets at
MILITARY LAWS OF THE UNITED STATES. 551
1480. Cadets shall be appointed one year in advance of .
the time of their admission to the Academy, except in cases ,^£49® s*i; y8^;
where, by reason of death or other cause, a vacancy occurs p-s^c.'i3i7,ii.s.
which can not be provided for by such appointment in
advance; but no pay or other allowance shall be given to
any appointee until he shall have been regularly admitted,
as herein provided; and all appointments shall be condi-
tional, until such provisions shall have been complied with.1
1481. Appointees shall be admitted to the Academy only ^Age of appoint-
between the ages of seventeen and twenty-two years, except
in the following case: Any person who has served honor-
ably and faithfully not less than one year, in either the vol-
unteer or regular service of the United States, in the late
war for the suppression of the rebellion, and who possesses
large without being restricted to selection from Congressional districts. The act of
March 3, 1875 (18 ibid., 467), authorized the President "to fill any vacancy occurring
at said academy by reason of death or other cause of any person appointed by
him;" but this clause was expressly repealed by section 4 of the act of June 11,
1878 (20 ibid., Ill), which restricted the number of appointments at large to ten in
all. The acts of March 1 , 1843, and section 10 of the act of March 2, -1899 (30 Stat. L. ,
979), which authorized the appointment of twenty cadets at large, were replaced by
section 4 of the act of June 6, 1900 (31 ibid., 656), which fixed the number of cadets
at one from each Congressional district, one from the District of Columbia, two from
each State at large, and thirty from the United States at large.
1 Appointments — How made. — Each Congressional district and Territory, also the
District of Columbia, is entitled to have one cadet at the Academy. Two cadets at
large from each State, and thirty from the United States at large are also appointed.
The appointments (except those at large) are made by the Secretary of War, at the
request of the Representative or Delegate in Congress from the district or Territory;
and the person appointed must be an actual resident of the district or Territory from
which the appointment is made. Those for a State at large are made, each upon the
request of a Senator from the State so entitled. The appointments at large are
specially conferred by the President of the United States.
Manner of making applications. — Applications can be made at any time by letter to
the Secretary of War, to-have the name of the applicant placed upon the register that
it may be furnished to the proper Representative or Delegate when a vacancy occurs.
The application must exhibit the full name, date of birth, and permanent abode of
the applicant, with the number of the Congressional district in which his residence
is situated.
Date of appointments. — Appointments are required by law to be made one year in
advance of the date of admission, except in cases where, by reason of death or other
cause, a vacancy occurs which can not be provided for by such appointment in
advance. These vacancies are filled in time for the next annual examination.
Alternates.. — The Representative or Delegate in Congress may nominate a legally
qualified second candidate, to be designated the alternate. The alternate will receive
from the War Department a letter of appointment, and will be examined with the
regular appointee, and if duly qualified will be admitted to the Academy in the event
of the failure of the principal to pass the prescribed preliminary examinations. The
alternate will not be allowed to defer his reporting at West Point until the result of
the examination of the regular appointee is known, but must report at the time des-
ignated in his letter of appointment. The alternate, like the nominee, should be
designated as nearly one year in advance of date of admission as possible.
There being no provision whatever for the payment of the traveling expenses of
either accepted or rejected candidates for admission, no candidate should fail to pro-
vide himself in advance with the means of returning to his home in case of his rejec-
tion before either of the examining boards, as he may otherwise be put to considerable
trouble, inconvenience, and even suffering on account of his destitute condition. If
admitted, the money brought by him to meet such a contingency can be deposited
with the treasurer on account of his equipment as a cadet or returned to his friends.
652 MILITARY LAWS OF THE UNITED STATES.
the other qualifications required by law, may be admitted
between the ages of seventeen and twenty-four years.1
^ Examination 1482. Appointees shall be examined under regulations*
UTpr 29 1812 c ^° ^e framed by the Secretary of War before they shall
june3i6Vi866'Jes:^e admitted to the Academy and shall be required to be
MarV< 21'4'i9oi35v; we^ versed in such subjects as he may from time to time
31Sc.9i3i9,B.s. prescribe.8 Act of March 0, 1901 (31 Stat. Z., 911).
Auth<3 1861 c 1^83. Each cadet shall, previous to his admission to the
SA®' 'V?^' Academy, take and subscrbe an oath or affirmation in the
ZooJ JU.I1C Oj J-oOO,
c. no,s. 2, v. 14, following form:
Sec.i820,B.s. u I, A B, do solemnly swear that I will support the Con-
stitution of the United States, and bear true allegiance to
the National Government; that I will maintain and defend
the sovereignty of the United States, paramount to any
and all allegiance, sovereignty, or fealty I may owe to any
State, county, or country whatsoever; and that I will at
all times obey the legal orders of my superior officers, and
the rules and articles governing the armies of the United
States."
And any cadet or candidate for admission who shall re-
fuse to take this oath shall be dismissed from the service.
fo^vfceemeilt 1484- Each cadet shall sign articles, with the consent of
72AsP3 vVp1?^'- his Pai*ents or guardian if he be a minor, [and] if any he
sU28 v^'S*)62' nave5 by which he shall engage to serve eight years unless
se'c.i82i,R.s. sooner discharged.
PAY AND ALLOWANCES.
22, p. 123; Mar. 1. r
1893, v. 27, p. 515. L
. Sec. 1339, B. S.
1485. Hereafter no cadet shall receive more than a
ate of five hundred and forty dollars' a year.4
ithe
1 It being impossible for a candidate to conform to the conditions of this statute, it
is now obsolete and no longer operative.
2 For regulations prepared in accordance with the foregoing enactment see THE
MILITARY ACADEMY REGULATIONS. Circulars containing the same information
respecting the physical and mental examinations for admission are furnished candi-
dates and others interested upon applications addressed to the Adjutant of the Mili-
tary Academy at West Point, New York, or to the Adjutant-General of the Army in
Washington.
3 This enactment replaces the requirements of section 1319, Revised Statutes, act of
June 16, 1866 (14 Stat. L., 359), inpari materia, which required candidates to "be well
versed in reading, writing, and arithmetic, and to have a knowledge of the elements
of English grammar, of descriptive geography, particularly that of the United States,
and of the history of the United States."
*The pay of cadets was fixed by the act of March 16, 1802, 2 Stat. L., 137, at six-
teen dollars per month and two rations per day. By the act of March 3, 1857, 11
Stat. L., 252, their pay was fixed at thirty-two dollars per month. Section 3 of the
act of April 1, 1864, 13 Stat. L., 39, contained the requirement that the cadets at the
Military Academy 'should receive the same pay (five hundred dollars per annum) as
the midshipmen at the Naval Academy; section 2 of the act of February 28, 1867,
14 Stat. L., 416, contained the requirement that they should also be entitled to the
ration (one hundred and nine dollars and fifty cents annual commutation value)
then allowed to active midshipmen. This fixed the pay and emoluments of a cadet
MILITARY LAWS OF THE UNITED STATES. 553
GRADUATION AND APPOINTMENT.
•
1486. That when any cadet of the United States Military
Academy has gone through all its classes and received ft
regular diploma from the academic staff, he may be pro- ^Yste.chvacancy
moted and commissioned as a second lieutenant in any arm
or corps of the Army in which there may be a vacancy
the duties of which he may have been judged competent to 24Apay7) 1886> v-
perform ; and in case there shall not at the time be a vacancy ^ec- 1213»K-S-
in such arm or corps, he may, at the discretion of the Pres-
ident, be promoted and commissioned in it as an additional
second lieutenant, with the usual pay and allowances of a
second lieutenant, until a vacancy shall happen.1 Act of
May 17, 1886 (24 Stat. Z., 50}.
1487. Only one supernumerary officer shall be attached ni^era?| officer
to any company at the same time under -the provisions of each comply10
the preceding section. 2 2 pp72i?'I8ug. \
' 1854, v. 10, p. 575. Sec. 1215, B.'S.'
1488. That every cadet who has heretofore graduated or
may hereafter graduate at the West Point Military
emy , and who has been or may hereafter be commissioned 24> P- 351-
a second lieutenant in the Army of the United States,
under the laws appointing such graduates to the Army,
shall be allowed full pay as second lieutenant from the date
of his graduation to the date of his acceptance of and qual-
at $609.50 per annum. The act of June 30, 1882, 27 Stat. L., 515, contained the
requirement that no cadet should thereafter ' ' receive more than at the rate of five
hundred and forty dollars a year."
Four dollars a month shall be deposited with the Treasurer from the pay of each
cadet, to be applied, at the time of his promotion, to the purchase of a uniform and
equipments. Par. 117, Reg. U. S. M. A., 1894.
A person appointed to a position in the Army, either as a cadet or an officer,
becomes a cadet or officer de facto when he accepts the appointment; but, in view
of the act of July 2, 1862, 12 Stat. L., 502, his pay can not commence until he takes
the oath of office. When a candidate passes the examinations and enters upon the
duties of a cadet, he thereby accepts his appointment, and his service in the Army
begins for all purposes of longevity, but his pay can not commence until he takes
the oath of office required by law. 3 Dig. 2nd Compt. Dec. , par. 884. The require-
ments of section 1 310 of the Revised Statutes that ' ' no person who has served in any
capacity in the military or naval service of the so-called Confederate States, or of
either of the States in insurrection during the late rebellion shall be appointed a
cadet," were repealed by the act of March 31, 1896, 29 Stat. L., 84.
'The requirement of section 3 of the act of June 18, 1878, 20 Stat. L., 150, " That
hereafter all vacancies in the grade of second lieutenant shall be filled by appoint-
ment from the graduates of the Military Academy so long as any such remain in
service unassigned; and any vacancies thereafter remaining shall be filled by promo-
tion of meritorious noncommissioned officers of the Army, recommended under the
provisions of the next section of this act: Provided, That all vacancies remaining,
after exhausting the two "classes named, may be filled by appointment of persons in
civil life," was repealed by section 5 of the act of July 30, 1892, 27 Stat. L., 336. See
the chapter entitled COMMISSIONED OFFICERS.
2 The Secretary of War is authorized to assign recent graduates, noncommissioned
officers, and civilians to the cavalry or infantry, although "additional" second lieu-
tenants remain in the engineers and artillery, and no vacancies exist in the last-
named branches. XX Opin. Att. Gen., 149.
554 MILITARY LAWS OF THE UNITED STATES.
ification under his commission and during his graduation
leave, in accordance with the uniform practice which has
prevailed since the establishment of the Military Academy.
Act of December 80, 1886 ($4 Stat. Z., 351).
INSTRUCTION.
battal-
1?^'; panies, according to the directions of the superintendent,
8it' £ each °^ wnicn shall be commanded by an officer of 'the
^sec. 1322, K. s. Army, for the purpose of military instruction. To each
company shall be added four musicians. The corps shall
be taught and trained in all the duties of a private soldier,
noncommissioned officer, and officer, shall be encamped at
least three months in each year, and shall be taught and
trained in all the duties incident to a regular camp.
d where to do 1490 Cadets shall be subject at all times to do duty
9 ?27'vVp°i37' *n such places and on such service as the President may
sundaytudies °u 149L The Secretary of War shall so arrange the course
294?sy2i%18i6,'p;:of studies at the Academy that the cadets shall not be re-
3s9ec. 1324, R. s. <luired to pursue their studies on Sunday.1
ofst?ic Shuffle 1492< The nature of alcoholic drinks and narcotics, and
codes8 and nar- special instruction as to their effects upon the human sys-
24Mpay69°'1886>v' ^ern' in connection with the several divisions of the sub-
ject of physiology and hygiene, shall be included in the
branches of study taught in the common or public schools
and in the military and naval schools, and shall be studied
and taught as thoroughty and in the same manner as other
like required branches are in said schools, by the use of
text-books in the hands of pupils where other branches are
thus studied in said schools, and by all pupils in all said
schools throughout the Territories, in the Military and
Naval Academies of the United States, and in the District
of Columbia, and in all Indian and colored schools in the
Territories of the United States. Act of May 20, 1886
(24 Stat. Z., 69).
Enforcement. 1493. It shall be the duty of the proper officers in con-
Sec 2 MRV 20
1886, v. 24, p. 69. ' trol of any school described in the foregoing section to
enforce the provisions of this act; and an}*- such officer,
school director, committee, superintendent, or teacher who
1 The course of study at the Military Academy is fixed, in part by the statutes cre-
ating the several departments of instruction (paragraphs 1458 and 1459, ante] and
other enactments of Congress (paragraph 1492, post), and in part by Executive regu-
lation.
MILITARY LAWS OF THE UNITED STATES. 555
shall refuse or neglect to comply with the requirements of
this act, or shall neglect or fail to make proper provisions
for the instruction required and in the manner specified by
the first section of this act, for all pupils in each and every
school under his jurisdiction, shall be removed from office,
and the vacancy filled as in other cases. Sec. #, act of May
20, 1886(24 Stat. Z., 69).
1494. No cadet who is reported as deficient, in either detee
conduct or studies, and recommended to be discharged from ^ JJ^fv ^2,' p.
the Academy shall, unless upon reccommendation of the 2^c. 1335, B. s.
academic board, be returned or reappointed or appointed
to any place in the Army before his class shall have left
the Academy and received their commissions.1
COURTS-MARTIAL.
1495. The Superintendent of the Military Academy shall fo^riatT^1-
have power to convene general courts-martial for the trial de^r 3 1873 c
of cadets, and to execute the sentences of such courts, ^s'el'm^'K.
except the sentences of suspension and dismission, subject
to the same limitations and conditions now existing as to
other general courts-martial.2
1 Where a cadet was, by order of the Secretary of War, on the recommendation of
the academic board, discharged from the Military Academy for deficiency in studies;
Held, (1) that the order of discharge, having been completely executed, is beyond the
power of revocation; (2) that section 1325, Revised Statutes, prohibits the returning
or reappointing of the cadet to the Academy, except upon the recommendation of
the academic board; (3) that Congress may thus limit or restrict the .authority of
the President to appoint cadets; (4) that accordingly it is not competent for the
President to revoke the said order or to restore the cadet to the Academy, irrespec-
tive of the recommendation of the academic board. XVII Opin. Att. Gen., 67.
A cadet applied to have his name changed on the register of the Military Academy;
Held, that the Secretary of War would not be empowered to change the name as such,
though he might make a new contract with the cadet in the new name. But advised,
as the preferable mode of proceeding, that the cadet first procure the name to be
changed in the mode prescribed by the statutes of his own State, after which the
register would of course be made to correspond. Dig. Opin. J. A. G., par. 657.
2 These courts have the same composition as the general courts-martial authorized
to be convened by the seventy-second and seventy-third articles of war.
Professors of the Military Academy are "commissioned officers of the Army."
Decision of the Secretary of War, May 27, 1857. But they are not commissioned
officers within the meaning of the seventy-fifth article of war, and therefore can not
be detailed as members of courts-martial. Scott's Digest, paragraph 169, note 16.
The President may, by his regulations of the civil police of the Academy, invest them
with authority adequate to all the purposes of their professorships; but he can invest
them with no portion of judicial power to affect the life or liberty of others. I Opin.
Att. Gen., 469; see also last clause of paragraph 1463, ante.
The undergraduate cadets are not commissioned officers, and are, therefore, not
competent to sit on a court-martial, and are triable by a regimental or garrison
cour.t-martial. VII Opin. Att. Gen., 323. In their internal academic organization as
officers, noncommissioned officers, and privates they are not subject to the Articles
of War as respects their relation to one another, but only as respects their relation
to commissioned officers of the Army, on duty as such at the Academy. Ibid.
Cadets are amenable to trial by court-martial for violations of the regulations of
556 MILITARY LAWS OF THE UlSnTED STATES.
Ma?Ti9oi, v. 1496- The Superintendent of the Military Academy shall
si, p. 911. make such rules, to be approved by the Secretary of War,
as will effectually prevent the practice of hazing; and any
cadet found guilty of participating in or encouraging or
countenancing such practice shall be summarily expelled
from the Academy and shall not thereafter be reappointed
to the Corps of Cadets or be eligible for appointment as a
commissioned officer in. the Army or Navy or Marine
Corps, until two years after the graduation of the class of
which he was a member. 1 Act of March 3, 1901 (31 Stat. L. ,
911).
the Academy, (a) as "conduct to the prejudice of good order and military discipline."
Dig. Opin. J. A. G., par. 654.
They are not the "noncommissioned officers" of the acts of Congress and the
General Regulations of the Army, which expression- means ' ' sergeants and cor-
porals," and is inapplicable to the cadets. Ibid. They are inchoate officers of the
Army, and subject to no discipline incompatible with that character. Ibid.
Where a cadet at West Point is sentenced by a court-martial to be dismissed the
service, and the President commutes the sentence to suspension for a fixed period,
it will not be inferred that his purpose was to deprive him of pay unless it is expressly
so stated or is clearly established that such was his purpose. Conrad v. U. S., 32 Ct.
Cls., 139. Where the President commutes the sentence of one cadet to suspension
and of another to suspension without pay it is conclusive that he did not intend the
former sentence to extend to loss of pay. Ibid.
The Superintendent of the Military Academy can have no power, by virtue of a
regulation of the Academy, to try and punish a cadet for a military offense for which,
under the Articles of War, he is amenable to trial by court-martial. A regulation
assuming to confer upon him such power would be in contravention of law and
inoperative. Otherwise of a regulation which merely authorized a measure of school
discipline. So, where a cadet, on arraignment for a military offense, pleaded in bar
that he had already for the same offense been punished by reduction from cadet
officer to cadet private, under par. 107, Academy Regulations, held that, regarding
such reduction as a form of discipline only, the plea was properly overruled by the
court. Dig. Opin. J. A. G., par. 656.
xThis enactment replaces the penalty imposed by the act of March 31, 1854 (23
Stat. L., 7). Under the authority conferred by this statute regulations have been
prepared by the Superintendent and promulgated with the approval of the Secretary
of War. See paragraphs 125, 136, 137, and 140, Regulations for U. S. Military
Academy.
In a case arising at the Naval Academy, under the act of June 23, 1874, it was held
by the Attorney-General (XVIII Opin. Att. Gen., 292) that the offense of hazing, not
being an offense at the common law, and not being defined by statute, the definition
of the offense must be gleaned from the rules and regulations" of the Naval Academy
that were in force at the date of the passage of the act in question. It was also held
' ' that, to constitute the offense of hazing under the statute, it is essential that the
victim of the maltreatment should be a new cadet of the fourth class. ' '
Where a cadet entered the Naval Academy and became a member of the fourth
class in 1885, and also remained a member of the same class in 1886, he is at the latter
period as much an " older cadet" within the definition of the offense of "hazing" as
a cadet who, having entered the Academy at the same time (1885), has since been
advanced to a higher class, and (equally with the latter) is capable of committing
that offense. (6) XVIII Opin. Att. Gen., 507.
a ACADEMIC REGULATIONS.
The regulations of the Military Academy may be altered by the Secretary of War with the appro-
bation of the President. I Opin. Att. Gen., 469.
b In this connection may be noted the opinion of the Solicitor-General (XV Opins., 634), that, except
for the offense of hazing, specially made punishable by the act of June 23, 1874, cadets of the Naval
Academy are not subject to trial by court-martial.
MILITARY LAWS OF THE UNITED STATE8. 557
Par.
THE BOARD OF VISITORS.
Par.
1497. Appointment.
1498. Duties.
1499. Compensation.
1500. The same, mileage, per diem.
1497. There shall be appointed every year, in the follow- 01Joard of yisitr
ing manner, a board of visitors, to attend the annual %ASU|- v'918p8Vr
examination of the Academy: Seven persons shall be ap-SoTi^v'is^!'^
pointed b}^ the President, and two Senators and three f8eb^ ^1, ISTO, c!
members of the House of Representatives shall be desig- kec.isa7, B.S.
nated as visitors, by the Vice-President, or President pro
tempore of the Senate, and the Speaker of the House of
Representatives, respectively, at the session of Congress
next preceding such examination.
1498. It shall be the duty of the board of visitors to Duties of visit-
inquire into the actual state of the discipline, instruction, Aug. s, IMS, c.
,. , '96,8. 2, v. 9, p. 71;
police administration, fiscal affairs, and other concerns of Feb. 21, 1370, c.
the Academy. The visitors appointed by the President sec.i328,R.s.
shall report thereon to the Secretary of War, for the infor-
mation of Congress, at the commencement of the session
next succeeding such examination, and the Senators and
Representatives designated as visitors shall report to Con-
gress, within twenty days after the meeting of the session
next succeeding the time of their appointment, their action
as such visitors, with their views and recommendations
concerning the Academy.
1499. No compensation shall be made to the membeis of
said board beyond the payment of their expenses 1 f or board ^e
and lodging while at the Academy, and an allowance, not J-
exceeding eight cents a mile, for traveling by the shortest ^fc&lsan R V
mail -route from their respective homes to the Academy,
and thence to their homes.2
1500. Hereafter the expenses allowed by section thirteen compensation.
i-i-ii Ju.n.6 11, 1878,
hundred and twenty-nine of the Revised Statutes shall bev-20>P-110-
paid as follows: Each member of the board of visitors shall
receive not exceeding eight cents per mile for each mile
traveled by the most direct route from his residence to
West Point and return, and shall in addition receive five
dollars per day for expenses during each day of his service
at West Point.2 Act of June 11, 1878 (W Stat. Z., 110).
1 The amount payable under this paragraph for expenses is, by the act of June 11,
1878, par. 1500, post, limited to $5 per day.
2 Under section 1339 of the Revised Statutes, as amended by the acts of March 3,
1877 (19 Stat. L., 382), and June 11, 1878 (20 Stat. L., 110), the mileage of the board
of visitors must be computed by "the most direct route" from their respective homes
to West Point and return, and not by the ' ' shortest mail route. ' ' 3 Dig. 2nd Compt.
Dec., par. 830.
558
MILITARY LAWS OF THE UNITED STATES.
LEAVES OF ABSENCE — PURCHASES CONTINGENT FUNDS.
Par.
1501. Leaves of absence.
1502. Documents for library.
1503. Government publications.
1504. Purchases of supplies.
Par.
1505. Purchases of books for library.
1506. Contingencies of Superintendent.
1507. Contingent fund.
senceves °f ab 1501. Leave of absence may be granted by the Superin-
ResUl6? v is8^' tendent, under regulations prescribed by the Secretary of
41|'ec 1330 R s War, to the professors, assistant professors, instructors,
and other officers of the Academy, for the entire period of
the suspension of the ordinary academic studies, without
deduction from pay or allowances.
d(£uS5i<m to 1502< The Secretary of the Senate shall furnish annually
library^ Ig56 c to the library of the Academy one copy of each document
!" published, during the preceding year, by the Senate.
1503' Tne libraries of the eight Executive Departments,
i895Cv928Jpn624! of tlie United States Military Academy, and United States
Naval Academy are hereby constituted designated deposi-
tories of Government publications, and the superintendent
of documents shall supply one copy of said publications,
in the same form as supplied to other depositories, to each
of said libraries. Sec. 98, act of January 12, 1895 (28 Stat.
L., 62fi.
1504. -^or increase and expense of the library, namely:
periodicals, stationer}^ binding books, and scientific,
historical, biographical, and general literature, to be pur-
chased in open market on the written order of the Super-
intendent, [two thousand dollars].1 Act of March 6, 1896
(29 Stat. L., 52}.
sc5ntificses and 1505. That all technical and scientific supplies for the
sup departments of instruction of the Military Academy shall
29Mpar526' 18%> v' ^e purchased by contract or otherwise, as the Secretary
of War may deem best.1 Act of June 6, 1900 (31 Stat.
iibrarchases for
29Mar526' 1896> v'
1 The annual acts of appropriation since that of May 1, 1888 (25 Stat. L., 112) have
contained this provision.
An appropriation for a library is a specific appropriation for books and other pub-
lications necessary or appropriate therefor. (VI Compt. Dec., 736. )
CLERKS AND EMPLOYEES.
The employment of clerical and other services is regulated by the annual acts of
appropriation. That of February 27, 1891, contains provision —
For pay of the master of the sword, one thousand five hundred dollars; (a)
For pay of one teacher of music, one thousand and eighty dollars; (a)
For clerk to the disbursing officer and quartermaster, one thousand five hundred
dollars;
a This salary is fixed by law. See paragraph 1472, ante.
MILITAEiT LAWS OF THE UNITED STATES. 559
CONTINGENT FUNDS.
1506. For contingencies for Superintendent of the Acad-
emv, one thousand dollars.1 Act of March 6, 1896 (%9a
v 7 lYLeir. O, -LotTO, V.
Stat. L.,49). 29'P-49-
1507. All funds arising from the rent of the hotel on Contingent
Academy grounds, and other incidental sources, from an(i 25May ^2188^'ap
after this date be, and are hereby, made a special con- 21^1893, v.' 27, P.'
tingent fund, to be expended under the supervision of the
Superintendent of the Academy, and that he be required
to account for the same, annually, accompanied by proper
[Footnote — Continued.]
For clerk to adjutant in charge of cadet records, one thousand five hundred dollars;
For one clerk to the adjutant, one thousand two hundred dollars;
For clerk to treasurer, one thousand five hundred dollars;
For one clerk to the quartermaster, one thousand two hundred dollars;
For pay of librarian's assistant, one thousand five hundred dollars;
For pay of one superintendent of gas works, one thousand five hundred dollars;
For pay of engineer of heating and ventilating apparatus for the academic build-
ing, the cadet barracks and office building, cadet hospital, chapel, and philosophical
building, including the library, one thousand five hundred dollars;
For pay of assistant engineer of same, one thousand dollars;
For pay of eight firemen, four thousand eight hundred dollars;
For pay of one draftsman in department of civil and military engineering, one
thousand dollars;
For pay of mechanic employed in chemical and geological section rooms and in
lecture rooms, one thousand dollars;
For pay of mechanic assistant in department of natural and experimental philoso-
phy, one thousand dollars;
For pay of custodian of new Academy building, one thousand dollars;
For pay of one electrician, nine hundred dollars;
For pay of one civilian plumber, one thousand two hundred dollars;
For pay of one assistant plumber, six hundred dollars;
For pay of one scavenger, at sixty dollars a month, seven hundred and twenty
dollars;
For compensation of chapel organist, two hundred dollars;
For pay of keeper of post cemetery, seven hundred and twenty dollars;
For pay of engineer and janitor for Memorial Hall, nine hundred dollars;
For pay of printer at Headquarters U. S. Military Academy, one thousand two
hundred dollars;
In all, for civilians employed at the Military Academy, thirty thousand five hun-
dred and twenty dollars.
1 Any appropriation for contingencies for the Superintendent of the Military Acad-
emy is available for such casual expenses as are necessary, or at least appropriate
and convenient, in order to the performance of the duties required by law of the
Superintendent. * * * The certificate of the Superintendent, as to the correct-
ness and justness of expenditures from the appropriation for contingencies for said
Superintendent may be accepted in the adjustment and settlement of Military Acad-
emy accounts. (3 Dig. 2nd Compt. Dec., par. 828. ) This provision has been repeated
in the annual appropriation acts from that of February 2, 1869, to that of March 6,
1886, with the exception of those from August 7, 1876, to January 27, 1881.
All accounts for the expenditure of public moneys should be itemized so far as
practicable, and a discretion given to the officer having control of an appropriation
does not dispense with this requirement. Expenditures for contingencies of the
Superintendent of the Naval Academy, appropriated by the act of March 3, 1897
(29 Stat. L., 662), should be made by the Superintendent, under the general direc-
tion of the Secretary of the Navy. (IV Compt. Dec., 159.)
An appropriation for contingencies for the Superintendent of the Military Acad-
emy is an appropriation for purposes of a contingent character — that is, such as
might or might not happen, and which Congress could not easily foresee, and there-
fore could not provide for definitely. (Ill Dig. Dec. 2 Compt., par. 827.)
560 MILITARY LAWS OF THE UNITED STATES.
vouchers to the Secretary of War. Act of May 1, 1888
(25 Stat. Z., 112). Provided, That all proceeds of the sale
of gas shall be paid into the post fund. Act of March 1,
1893 (27 Stat. Z.,
THE MILITARY ACADEMY BAND.
1508. The Military Academy Band shall hereafter consist
1901, v. nf
81, p. 912.
a, etc.
arqi2 1901> v' °^ one teacher of music, who shall be the leader of the
band, and of forty enlisted musicians. The teacher of
music shall receive the pay of a second lieutenant, not
mounted; and of the enlisted musicians of the band, twelve
shall each receive thirty-four dollars per month, twelve shall
each receive twenty -five dollars per month, and the remain-
ing sixteen shall each receive seventeen dollars per month,
and each of the aforesaid enlisted men shall also be entitled
to the clothing, fuel, rations, and other allowances of
musicians of cavalry ; and the said teacher of music and the
enlisted musicians of the band shall be entitled to the same
benefits in respect to pay, emoluments, and retirement
arising from longevity, reenlistment, and length of service
as are, or may hereafter become, applicable to other en-
listed men of the Army.1 Act of March 2, 1901 (31 Stat.
Z., 912).
GENEKAL ARMY SERVICE MEN, QUARTERMASTER'S DEPARTMENT.
Par.
1509. Organization.
1510. Restriction on strength.
Par.
1511. Pay of certain enlisted men.
n eTcy 1509> The enlisted men known as the artillery detach -
26Jpn1e670'18^0'v>nient at West Point shall be mustered out of the service
as artillery men and immediately reenlisted as Army
Service men in the Quartermaster's Department, continu-
ing to perform the same duties and to have the same pay,
allowances, rights, and privileges, and subject to the rules,
regulations, and laws in the same manner as if their service
had been continuous in the artillery, and their said service
shall be considered and declared to be continuous in the
Army.2 Act of June 20, 1890 (26 Stat. Z., 167).
JThis enactment replaces sections 1111 and 1278, Revised Statutes, and the act of
March 3, 1877 (19 Stat. L., 380), in pari materia.
2 The act of June 20, 1890 (26 Stat. L. 167), which changed the name of the artil-
lery detachment at West Point to "Army Service men in the Quartermaster's De-
partment," contemplated only a change of name of the corps, without affecting their
duties, pay, or allowances, including extra duty and extra pay therefor. (IV Compt.
Dec., 353.) The act of June 6, 1900 (31 Stat. L., 647), makes provision for the pay
of an artillery detachment of forty enlisted men.
MILITARY LAWS OF THE UNITED STATES. 561
1510. The detachments of enlisted men at the Military g^^h* of
Academy, heretofore designated as the General Army 29Feb^'1897'v>
Service, Quartermaster's Department, and the cavalry de-
tachment, shall be fixed at such numbers, not exceeding
two hundred and fifteen enlisted men in both detachments,
as in the opinion of the Secretary of War the necessities
of the public service may from time to time require ; but
the number of enlisted men of the Army shall not be in-
creased on account of this proviso or the two preceding
paragraphs of this act.1 Act of February 10, 1897 (29
Stat. Z., 519).
1511. The noncommissioned officer in charge of me- ?.a?" 9f certain
P enlisted men.
chanics and other labor at the Military Academy, the sol-
dier acting as clerk in the adjutant's office, and the four
enlisted men in the philosophical and chemical depart-
ments and lithographic office, shall receive fifty dollars a
year additional pay.2
THE CULLUM MEMORIAL HALL.
1512. The Memorial Hall to be erected under the pro- Purpose of the
r, , i . i n i i t> Memorial Hall.
visions of this act shall be a receptacle of statues, busts, sec. 6, ma.
mural tablets, and portraits of distinguished and deceased
officers and graduates of the Military Academy, of paint-
ings of battle scenes, trophies of war, and such other objects
as may tend to give elevation to the military profession;
and to prevent the introduction of unworthy subjects into
this hall the selection of each shall be made by not less than
two-thirds of the members of the entire academic board of
the United States Military Academy, the vote being taken
by ayes and nays and to be so recorded. Sec. 6, act of July
23,1892(27 Stat. L.,
1 The act of April 26, 1898 (30 Stat. L., 365), which provides that in time of war no
additional compensation shall be allowed to soldiers performing what is known as
"extra or special duty," applies to enlisted men at the Military Academy. 4 Dec
Compt., 616.
The act of July 26, 1894 (28 Stat. L., 155), conferred authority upon the Secretary
of War to increase the strength of this detachment to one hundred and fifty men.
The act of March 6, 1896 (29 Stat. L., 48), fixes the strength of the cavalry detach-
ment as follows: One first sergeant, five sergeants, four corporals, two farriers, one
saddler, one wagoner, and fifty-two privates. The authorized strength of these de-
tachments is now 215 enlisted men.
2 The act of March 6, 1896 (29 Stat. L., 48), contains an appropriation for the pay-
ment of extra-duty pay to seventeen enlisted men with the proviso that none of the
money so appropriated shall be paid to any enlisted man who receives extra-duty
pay under existing laws or Army Regulations. The acts of June 20, 1890 (26 Stat.
L., 167), March 2, 1891 (26 Stat. L., 820), July 14, 1892 (27 Stat. L., 171), March 1,
1893 (27 Stat. L., 520) , July 26, 1894 (28 Stat. L., 155) , and January 16, 1895 (28 Stat.
L., 631), contain similar restrictions.
22924—08 36
562
MILITARY LAWS OF THE UNITED STATES.
BUILDINGS FOR RELIGIOUS WORSHIP.
1513. The Secretary of War, in his discretion, may
30 722 1898> v- authorize the erection of a building for religious worship
by any denomination, sect, or religion on the West Point
Military Reservation : Provided, That the erection of such
building will not interfere with the uses of said reservation
for military purposes. Said building shall be erected
without any expense whatever to the Government of the
United States, and shall be removed from the reservation,
or its location changed by the denomination, sect, or
religious body erecting the same whenever, in the opinion
of the Secretary of War, public or military necessity shall
require it, and without compensation for such building or
any other expense whatever to the Government. Act of
July 8, 1898 (30 Stat. L.,
THE ARMY WAR COLLEGE.
THE SERVICE SCHOOLS.
Par.
1514. The Army War College.
1515. The U. S. Engineer School.
1516. The Artillery School.
1517. Sewers, wharves, streets, repairs.
Par.
1518. The U. S. Infantry School.
1519. The Cavalry and Light Artillery
School.
THE ARMY WAR COLLEGE.
pu^aor8e.College;
May
1814- For the establishment of the Army War College,
3iMpay209.' 19°°' v< Caving for its object the direction and coordination of the
instruction in the various service schools, extension of
the opportunities for investigation and study in the Army
and militia of the United States, and the collection and
dissemination of military information, twenty thousand
dollars. Act of May 26, 1900 (31 Stat. Z., 209).
THE UNITED STATES ENGINEER SCHOOL1 AT WILLETTS POINT, N. Y.
1515« For purchase of materials for use of the United
3ifpay2i6.' 19°°' v' States Engineer School and for the instruction of engineer
1The U. S. Engineer School was established by Executive order, but has been recog-
nized in the several acts of appropriation. See acts of March 3, 1871, 16 Stat. L., 523;
March 3, 1873, 17 Stat. L., 546; June 16, 1874, ISStat. L., 74; July 24, 1876, 19 Stat L.,
100; March 3, 1878, 20 Stat. L., 32; March 3, 1879, ibid., 467; May 4, 1880, 21 Stat. L.,
13; February 24, 1881, ibid., 349; June 30, 1882, 22 Stat L., 121; March 3, 1883, ibid.,
459; July 5, 1884, 23 Stat. L., 112; March 3, 1885, ibid., 434; June 30, 1886, 24 Stat. L.,
98; February 9, 1887, ibid., 400; September 22, 1888, 25 Stat. L. 487; March 2, 1889,
ibid., 832; June 13, 1890, 26 Stat. L., 155; February 24, 1891, ibid., 778; July 16, 1892,
27 Stat. L., 181; February 29, 1893, ibid., 485; August 6, 1894,28 Stat. L., 241; Feb-
ruary 12, 1895 ibid, 662, March 16, 1896 29 Stat. L., 67; March 2, 1897, ibid., 617; and
March 15, 1898, 30, ibid, 325.
MILITAEY LAWS OF THE UNITED STATES. 563
troops at Fort Totten, Willets Point, in their special duties
as sappers, miners, for land and submarine mines, and
pontoniers, torpedo drill, and signaling, one thousand five
hundred dollars; for purchase and binding of professional
works of recent date treating of military and civil engi-
neering and kindred scientific subjects, for the library of
the United States Engineering School, five hundred dol-
lars. Act ofMa/y 26, 1900 (31 Stat. L., 216).
THE UNITED STATES ARTILLERY SCHOOL1 AT FORT MONROE, VA.
1516. To provide means for the theoretical and practical Designation
A and purpose.
instruction at the Artillery School at Fortress Monroe, 31^0256' 1900> v-
Virginia, * * * by the purchase of text-books, books
of reference, scientific and professional papers, and for
all other absolutely necessary expenses, to be allotted in
such proportions as may, in the opinion of the Secretary
of War, be for the best interest of the military service,
eight thousand dollars. Act of May 26, 1900 (31 Stat.
Z., 205).
1517. The Secretary of War is hereby further authorized w^|f for
to assess upon vessels using the wharf at Fort Monroe,
Virginia, one-half of the actual cost of repairs rendered
necessary by the ordinary wear and tear of said wharf, and
any damage done to said wharf by any vessel shall be paid
for by the owner or owners of said vessel; and he is also charges for
i • -. -IT -i street repairs,
authorized and directed from time to time to cause to be etc.
Aug. 1, 1894, v.
assessed upon and collected from the owners of non- 28, p. 212.
military buildings situated within the limits of the Fort
Monroe Military Reservation, and from individuals or cor-
porations engaged in business thereat, other than water
navigation companies, one-half of such sum or sums of
xThe Artillery School was established at Fortress Monroe, Va., in pursuance of
General Orders, No. 18, Adjutant-General's Office, of April 5, 1824. It ceased to exist,
in 1835, by reason of the transfer of the troops composing the school to other duties.
It was reestablished by General Orders, No. 9, Adjutant-General's Office, of October
30, 1856. A code of regulations and plan of instruction was approved by the Secre-
tary of War and published to the Army in General Orders, No. 5, Adjutant-General's
Office, of May 18, 1858. The school was again discontinued at the outbreak of the
war of the rebellion in 1861. It was again organized on its present foundation by
General Orders, No. 99, Adjutant-General's Office, of November 13, 1867. Although
not created by statute, its existence has been recognized and the courses of study
pursued have been sanctioned by Congress in several acts of appropriation. See acts
of June 20, 1878, 20 Stat. L., 223; March 3, 1879, ibid., 389; March 3, 1881,21 Stat. L.,
445; August 7, 1882, 22 Stat. L., 320; March 3, 1883, ibid., 618; July 7, 1884, 23 Stat. L.,
222; March 3, 1885, ibid., 510; August 4, 1886, 24 Stat. L.,251; October 2, 1888, 25 Stat.
L.,540; March 2, 1889, ibid., 971; August 30, 1890, 26 Stat. L.,402; March 3, 1891, ibid.,
979; Augusts, 1892, 27 Stat. L., 379; March 3, 1893, ibid., 601; August 18, 1894, 28 Stat.
L., 406; March 2, 1895, ibid., 951, June 11, 1896, 29 Stat. L., 444; March 2, 1897,
ibid.. 617; March 15, 1898, 30 Stat. L., 327; May 26, 1900, 31 ibid, 209: and March
2, 1901, ibid., 895.
564 MILITARY LAWS OF THE UNITED STATES.
money as he may deem just, reasonable, and necessary for
expenditure upon the repair and operation of such roads,
pavements, streets, lights, sewerage, and general police,
as, in the opinion of the- Secretary of War, should be con-
structed and maintained in order to protect the interests
of the United States and the interests, health, and general
. welfare of the said nonmilitary interests now established or
Use of receipts.
that may hereafter be established at Fort Monroe:1 Pro-
vided further, That all funds collected as above provided,
or that may be received from other incidental sources from
and after this date, be, and are hereby, made special con-
tingent funds, to be collected and expended for the above
purposes in accordance with rules and regulations to be
prescribed by the Secretary of War, who will render annu-
ally to Congress a detailed account of all receipts and
expenditures.2 Act of August 1, 1894 (®$ Stat. Z.,
THE UNITED STATES INFANTRY AND CAVALRY SCHOOL3 AT FORT LEAVENWORTH, KANS.
i|Jst.tion 1518- To provide means for the theoretical and practical
3if£a2oi6' 196o> v- instruction at * * * the Infantry and Cavalry School
at Fort Leavenworth, Kansas; * * by the purchase
of text-books, books of reference, scientific and profes-
sional papers, and for all other absolutely necessary
expenses, to be allotted in such proportions as may, in the
opinion of the Secretary of War, be for the best interest
of the military service, eight thousand dollars. Act of May
m, 1900(31 Stat. L.,205).
of August 1, 1894 (28 Stat. L., 212), had contained the requirement that
"the owners of hotels and other nonmilitary buildings now at Fort Monroe, Virginia,
shall bear one-half of the expense of constructing said sewer," and the Secretary of
War was authorized to " equitably and justly apportion among, assess against, and
collect from the said owners and expend in construction of said sewer the moiety of
the estimated cost thereof."
2 Regulations for the apportionment and collection of assessments under this statute
have been prepared and promulgated by the Secretary of War. Under the provision
in the act of June 11, 1896 (29 Stat.L., 414), making an appropriation for a post-office
building at Fortress Monroe, "that the building shall be erected upon plans, specifi-
cations, etc., to be approved by the Secretary of War," the building was placed, for
the purpose of erection, under the control of the War Department, but upon the
completion of the building it will pass by operation of law into the custody of the
Treasury Department. (IV Cornpt. Dec., 521.)
3The Infantry and Cavalry School was established at Fort Leavenworth, Kans.,
in pursuance of General Orders, No. 42, Adjutant-General's Office, of May 7, 1881.
Although not created by statute, its existence has been recognized by Congress in
several acts of appropriation. See acts of March 2, 1889, 25 Stat. L., 966; August 30,
1890, 26 Stat. L., 462; March 3, 1891, ibid., 979; Augusts, 1892, 27 Stat. L., 379;
March 3, 1893, ibid., 601; August 18, 1894, 28 Stat. L., 400; March 2, 1895, ibid,, 951;
and June 11, 1896, 29 Stat. L., 444; and subsequent acts of appropriation, including
those of May 26, 1900, 31 Stat. L., 205, and March 2, 1901, ibid, 895.
MILITARY LAWS OF THE UNITED STATES. 565
THE CAVALRY AND LIGHT ARTILLERY SCHOOL1 AT FORT RILEY, KANS.
1519. That the Secretary of War be, and he- is hereby, al*
authorized and directed to establish upon the military res- ^JJfJJ
ervation at Fort Riley , a permanent school of instruction ^eed gj^s Fort
for drill and practice for the cavalry and light artillery 24Jan^' 18®7' v*
service of the Army of the United States, and which shall
be the depot to which all recruits for such service shall be
sent; and for the purpose of construction of such quarters,
barracks, and stables as may be required to carry into
effect the purposes of this act the sum of two hundred
thousand dollars, or so much thereof as may be necessary,
is hereb}^ appropriated out of any money in the Treasury
not otherwise appropriated. Act of January £9, 1887 (24
Stat. Z.,
1 The Cavalry and Light Artillery School was established in pursuance of the act
of January 29, 1887, by General Orders, No. 17, Adjutant-General's Office of March
14, 1882. See also in connection with this school the acts of October 2, 1888, 25 Stat.
L., 534, and March 2, 1889, ibid., 966; and subsequent acts of appropriation, includ-
ing those of May 26, 1900, 31 Stat. L., 205, and March 2, 1901, ibid, 896.
OHA.FTER XXXII.
CONTRACTS AND PURCHASES.
Par.
1520-1528. General provisions respecting
contracts and purchases.
1529-1533. Advertising.
1534-1538. Bids and proposals.
1539-1541. Preparation and execution of
contracts.
1542-1556. Miscellaneous requirements.
1557. Assignments.
1558-1566. Penal offenses in connection
with contracts and purchases.
Par.
1567-1570. The Returns Office.
1571. Copy of contract to Auditor for
War Department.
1572-1575. The Eight-Hour law.
1576, 1577. Bonds to secure payment for
labor and materials.
1578-1580. Inspection of fuel in the Dis-
trict of Columbia.
GENERAL PROVISIONS.
1520. Contracts to be made under 'direc-
tion of the Secretary of War.
1521. Unauthorized contracts prohibited.
1522. Erection and repair of public
buildings.
Purchases of land.
1523.
Contracts for
the military serv-
ice to be made
under direction
of Secretary of
War.
July 16, 1798, c.
85,s. 3, V.I, p. 610;
Feb. 27, 1877, c.
69, v. 19, p. 249.
Sec. 3714,E.S.
1524. The same, building sites.
1525. Acceptance of volunteer service.
1526. Contracts, how made.
1527. The same, advertisements.
1528. The same, restriction.
1520. All purchases and contracts for supplies or serv-
ices for the military and naval service shall be made by or
under the direction of the chief officers of the Departments
of War and of the Navy, respectively.2 And all agents or
contractors for supplies or service as aforesaid shall render
their accounts for settlement to the accountant of the
1 The United States in its political capacity may, within the sphere of the constitutional
powers confided to it, and through the instrumentality of the departments to which
those powers are intrusted, enter into contracts not prohibited by law and appropri-
ate to the just exercise of these powers; no legislative authorization is required, such
power being incident to the general right of sovereignty. Dugan v. U. S., 3 Whea-
ton, 172; U. S. v. Tingey, 5 Peters, 114; U. S. v. Bradley, 10 ibid., 343; U. S. v. Linn,
15 ibid., 290; Cotton v. U. S., 11 Howard, 229; Fowler v. U. S., 3 Ct. Cls., 43; Allen
v. U. S., ibid., 91.
2 Under this statute the Secretary of War is the source of all authority to make
contracts or purchases in all branches of the military establishment. "Whether he
makes the contracts himself, or confers the authority upon others, it is his duty to
see that they are properly and faithfully executed; and if he becomes satisfied that
contracts which he has made himself are being fraudulently executed, or those made
by others were made in disregard of the rights of the Government, or with the intent
to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest
566
MILITARY LAWS OF THE UNITED STATES. 567
proper department for which such supplies or services are
required, subject, nevertheless, to the inspection and revi-
sion of the officers of the Treasury in the manner before
prescribed.1
1521. No contract or purchase on behalf of the United ?on?mcte?rohibd
States shall be made, unless the same is authorized by law lt(Mar. 2, isei, c.
or is under an appropriation adequate to its fulfillment, |!0S- 10) v< 12> p-
except in the War and Navy Departments, for clothing, Sec-3782>B-S-
subsistence, forage, fuel, quarters, or transportation,
which, however, shall not exceed the necessities of the cur-
rent year. 2
the execution, and adopt effectual measures to protect the Government against the
dishonesty of subordinates." U. S. v. Adams, 7 Wall, 463, 477; Parish v. U. S., 8
Wall., 489.
The head of an Executive Department may, when not prejudicial to the interests
of the Government, or for its benefit, alter or modify the terms of a contract made
under his direction, but his subordinates may not take such action without express
authority from him. 2 Compt. Dec., 182.
The laws governing the purchase of supplies for the Army are equally applicable
whether the purchases are made from funds received from the sale of stores or from
the regular appropriations available therefor. 3 Dig. 2 Compt. Dec., 287.
It is only an express contract which (in the absence of special authority from
Congress) can legally be entered into by the Secretary of War, or a military officer, or
can be recognized and acted upon as binding upon the United States. Claims against
the United States arising upon alleged implied contract can not be entertained, but
the claimants must be referred to the Court of Claims or Congress. Further, the
contract, to be legally made or recognized as legal, must be in writing (a) (except
only — according to the ruling in Cobb's Case (b) when entered into without previous
advertisement by reason of the existence of a " public exigency;" see infra). So,
in a case where the only evidence of an alleged contract of lease consisted of vouch-
ers, setting forth accounts for rent claimed, approved by an assistant quartermaster,
held, that there was no sufficient evidence of an express or written contract upon
which payment could be authorized by the Secretary of War. (c) Dig. Opin. J. A.
Gen., 275, par. 1.
The Secretary of War has authority to extend the time for the execution of a con-
tract made on behalf of his Department when the interests of the Government are
not thereby prejudiced, and particularly when its noncompletion within the time
limited is not due to the negligence of the contractor. 2 Compt. Dec. , 242 ; Solomon v.
U. S., 19 Wall., 17; U. S. v. Corliss Steam Engine Co., 91 U. S., 321; XVIII Opin.
Att. Gen., 101; 2 Compt. Dec., 635.
Approval of contract by superior authority. — Where a contract in terms " is subject to
the approval of the Quartermaster-General," approval is a condition precedent to
the legal effect of the agreement, Darragh v. U. S., 33 Ct. Cls., 377; Monroe & Rich-
ardson v. U. S., 35 ibid., 199. The refusal of the Quartermaster-General to approve
a contract after work has been begun by the contractor is not a rescission. The con-
tractor who begins work before approval does so at his own risk; and if he is paid
for the work done, he can not recover profits as if there had been a breach. Ibid.
Such approval need not be in writing. Speed's Case, 8 Wallace, 77. Though the
failure of the Quartermaster-General to act within a reasonable time might validate
a contract made subject to his approval, he is nevertheless entitled to time for inquiry
and investigation and the discharge of the ordinary business of his department.
Darragh v. U. S., 33 Ct. Cls., 377.
1 For statutes in respect to accounting, see the title ' ' The Accounting Officers, ' ' in
the chapter entitled THE DEPARTMENT OP THE TREASURY.
2 The United States when it enters .into a contract with an individual relinquishes
its sovereign character quoad that transaction, is subject to the rules of right and
justice between man and man, and is controlled by the same laws that govern indi-
viduals with respect to such contract. Clark v. U. S., 6 Wallace, 546; U. S. v. Smoot,
a See 'Henderson r. U. S., 4 Ct. Cls., 75; XIV Opin. Att. Gen., 229; Clark v. U. S., 95 U. S., 539.
6 Cobb v. U. S., 7 Ct. Cls., 470, and 9 ibid., 291. And see Thompson v. U. S., ibid., 198.
cSee XIV Opin. Att. Gen., 230.
568 MILITAEY LAWS OF THE UNITED STATES.
cf 15^2. ^° contract shall be entered into for the erection,
233Usy325v1i58'p rePa^r? or furnishing of any public building, or for any
17slc 8788 B s P11^0 improvement whih shall bind the Government to
pay a larger sum of money than the amount in the Treas-
ury appropriated for the specific purpose. *
purchases of 1523. No land shall be purchased on account of the
May i, 1820, c. United States, except under a law authorizing such pur-
52, s. 7, v. 3. p. 568. ,
Sec. 3786, B. 8. chase.2
^sites for build- ^524. No money shall be paid nor contracts made for
I8*pa37i' 1875> v* payment for any site for a public building in excess of the
amount specifically appropriated therefor. 3 Act of March
3, 1875(18 Stat. L.,371).
15 ibid., 47; Cooke v. U. S., 91 U. S., 398; U. S. v. Bostwick, 94 U. S., 592; Mann v.
U. S., 3 Ct. Cls., 404; Chic. K. R. Co. v. U. £., 104, U. S., 680; U. S. v. No. Am. Com.
Co., 74 Fed. Rep., 145. The United States is liable in damages for breach of contract
to the same extent as an individual. Chicago R. R. Co. v. U. S. , 104 U. S. , 680; Eastern
R. R. Co. y. U. S., 129 U. S., 396. Such right of action against the United States,
however, is subject to the limitation that the Government can not be be sued with-
out its consent. U. S. v. McLemore, 4 Howard, 286; Hill v. Clarke, 8 Peters, 444;
U. S. v. Clarke, 8 Peters; DeGrootv. U. S., 5 Wallace, 419; U. S. v. Eckford, 6 ibid.,
484; U. S. v. Lee, 106 U. S., 204; Nock v. U. S., 2 Ct. Cls., 451. Such consent to
be sued, in respect to certain causes of action, has been given by the establishment of
the Court of Claims. For the jurisdiction of this court, see chapter VII, ante.
The restrictions of section 3732, Revised Statutes, are in the alternative, prohibit-
ing a contract or purchase on the part of the United States unless ''authorized by
law" or unless such contract or purchase is made "under an appropriation adequate
to its fulfillment." Contracts to be valid must be shown to come under one or the
other of these provisions. Shipman v. U. S., 18 Ct. Cls., 138.
When the authority to enter into a contract for a parlicular work in behalf of the
United States depends wholly upon an appropriation of money made for that pur-
pose, no officer of the Government has power to create a liability therefor beyond
the amount of the appropriation, and a contractor can not recover more than the
money appropriated, whatever may be the extent of his work. When an alleged
liability rests wholly upon the authority of an appropriation they must stand or fall
together, so that when the latter is exhausted the former is at an end, to be revived,
if at all, only by subsequent legislation by Congress. Shipman v. U. S., 18 Ct, Cls.,
138, 147; McCullom v. U. S., 17 ibid., 92, 103; Trenton Co. v. U. S., 12 ibid., 147, 157.
If an officer is clothed with authority to do a piece of work without limitation as to
cost, the contracts made by him therefor are binding upon the Government whether
money is appropriated for the purpose or not. Shipman v.TJ. S., 18 ibid., 138; Col-
lins v. U. S., 15 ibid., 22', 35; XIII Op. Att. Gen., 315; XV ibid., 236.
Acknowledgments and promises made by executive officers of the Government do
not bind the United States when they are not made under express or implied authority
of Congress. Leonard et al. v. U. S., 18 Ct. Cls., 382.
1 Authority to contract for the completion of an entire structure, the plan of which
has been determined on, can not be inferred from the mere fact that an appropriation
of a certain sum, to be expended on the structure, has been made. Hence a contract,
though it be good to the extent of such appropriation, could not affix itself to future
appropriations and control their expenditure. A contract of this character would
be in violation of the spirit of section 3, act of July 25, 1868, sec. 3733, R. S., if not
of its express terms. XV Op. Att. Gen., 236.
Under section 5 of the act of June 20, 1874, 18 Stat. L., Ill, all appropriations for
"public buildings" are available until otherwise ordered by Congress. 3 Dig. 2
Comp. Dec., 29. A subappropriation for a public building must, under the act of
June 20, 1874, 18 Stat. L., 110, 111, remain available until its object has been accom-
plished or until it has been exhausted, unless otherwise ordered by Congress. Ibid.
See also 2 Comp. Dec., 365; 3 ibid., 487.
2 The act of Congress does not prohibit the acquisition by the United States of the
legal title to land, without express legislative authority, when it is taken by way of
security for debt. Neilson v. Lagow, 12 How., 98.
8 See, also, for additional restrictions the act of March 3, 1875 (18 Stat. L., 371).
MILITAEY LAWS OF THE UNITED STATES. 569
1525. Hereafter no Department or officer of the United
States shall accept voluntary service for the Government ^e^1
or employ personal service in excess of that authorized 23Mpay171; 184' v-
by law, except in cases of sudden emergency involving
the loss of human life or the destruction of property.1
Act of May 1, 1884 (23 Stat. L., 17).
1526. All purchases and contracts for supplies 2 or serv-
ices in any of the Departments of the Government, except S|fep
f or personal services, shall be made by advertising 3 a suf- ^S, isei, c.
ficient time previously for proposals respecting the same 226 s' 10) v'12' p'
when the public exigencies do not require the immediate ecut?veiMDepar£
delivery of the articles or performance of the service. m|2ffg7a9, B. s.
When immediate delivery or performance is required by
the public exigency 3 the articles or service required may
be procured by open purchase or contract at the places
and in the manner in which such articles are usually
bought and sold or such services engaged between indi-
viduals.4
Venison v. U. S., 168 U. S. 241.
2 The word " supplies," as used in section 3709 of the Revised Statutes evidently
has reference to those things which the well-known needs of the public service will
from time to time require in its different branches for its successful and efficient
administration, and the statute was intended to afford the Government the pecu-
niary benefits, as well as the protection against fraud and favoritism, which open
and honest competition is always likely to secure. It could not have been in the
mind of the lawmaking power to require that purchases could only be made after
advertisement of small articles which may occasionally be needed, and where in
many cases the cost of advertising itself would exceed the value of the article pur-
chased. It can not be said that such cases are governed by the emergency provision
in the statute, for there may be, and are, many instances where the officer could not
truthfully certify that immediate delivery was necessary. 3 Dig. 2 Compt. Dec., 288.
3 The act of March 2, 1861, sec. 3709, R. S., while requiring such advertisement as
the general rule, invests the officer charged with the duty of procuring supplies or
services with a discretion to dispense with advertising if the exigencies of the public
service require immediate delivery or performance. It is too well settled to admit
of dispute at this day that where there is a discretion of this kind conferred on an
officer or board of officers, and a contract is made in which they have exercised that
discretion, the validity of the contract can not be made to depend on the degree of
wisdom or skill which may have accompanied its exercise. U. S. v. Speed, 8 Wall.,
77, 83; Child v. U. S., 4 Ct. Cls., 176; Mason v. U. S., 4 Ct. Cls., 495; Wentworth
v. U. S., 5 Ct. Cls., 302. See, also, III Compt. Dec., 175, 314, 470.
* Section 3709, Revised Statutes, provides, generally, that the making of public con-
tracts for supplies, etc., shall be preceded by an advertising for proposals "when the
public exigencies do not require the immediate delivery of the articles or performance
of the service. ' ' Exigencies growing out of a state of war, or hostilities with Indians,
were probably mainly had in view, and it is exigencies of this class which have been
considered in the adjudged cases in the Supreme Court and Court of Claims, (a) It
is clear, however, that other exigencies may exist requiring that contracts or pur-
chases be made at once or without the delay incident to advertising for proposals.
Thus a loss of stores, structures, etc., on hand, caused by an actus Dei or vis major,
as fire, storm, freshet, or a sudden riot or violent disorder; or a loss of supplies occa-
sioned by the neglect of military subordinates in charge; or a failure of a contractor
to fulfill a contract for supplies, transportation, or other service, might properly be
aSee U. S. v. Speed, 8 Wallace, 83; Reeside v. U. S., 2 Ct. Cls., 1; Mowry v. U. S., ibid., 68; Stevens
v. U. S., ibid., 95; Floyd v. U. S., ibid., 429; Crowell v. U. S., ibid., 501; Baker v. U. S., 3 ibid., 343; Hen-
derson v. U. S., 4 ibid., 75; Childs v. U. S., ibid., 176; Wentworth v. U. S., 5 ibid., 302; Wilcox v. U. S.,
ibid., 386; Cobb v. U. S., 7 ibid., 471, and 9 ibid., 291; Thompson v. U. S., ibid., 187; McKee v. U. S., 12
ibid., 505.
570 MILITARY LAWS OF THE UNITED STATES.
1527< Tlie advertisement for such proposals shall be
e day6 made bJ a11 tiie Executive Departments, including the
l ap' 33 Department of Labor, the United States Fish Commission,
B. s. Sec. 3709. fae Interstate Commerce Commission, the Smithsonian
Institution, the Government Printing Office, the govern-
ment of the District of Columbia, and the superintendent
of the State, War, and Navy building, except for paper
and materials for use of the Government Printing Office,
and materials used in the work of the Bureau of Engrav-
ing and Printing, which shall continue to be advertised
^or and Purchased as now provided by law, on the same
days and shall each designate two o'clock post meridian of
such days for the opening of all such proposals in each
regarded as constituting an ' ' exigency ' ' under the statute, if of such magnitude or
injurious consequence to the Army as to necessitate an immediate making good of
the deficiency, (a) The general rule, however, of the statute in requiring a notice
and invitation to the public as a preliminary to the awarding of a contract, is founded
upon a sound and well-considered public policy, and exceptions thereto, especially
in time of peace, should be recognized as admissible only where, if the rule were
strictly complied with, the public interests would manifestly be most seriously pre-
judiced. (6) Dig. Opin. J. A. G., 279, par. 9.
An exigency can not be created by the simple certificate of a public officer that it
exists. An exigency involves a state of pressing necessity so great that the public
interests would be prejudiced if the contemplated purchase was not made. A cer-
tificate made after the purchase of the articles is of no effect. 3 Dig. Compt. Dec. , 286.
The term "public exigency" refers to an exceptional and urgent necessity requiring
the immediate performance of the work or service. Ibid., 328.
Proof of the existence of an exigency must be presented in order to authorize the
accounting officers to pass a voucher for an exigency purchase under section 3709 of
the Kevised Statutes. Such proof must accompany the voucher in the form of a
certificate by the officer who made the purchase that a public exigency required the
immediate delivery of the articles purchased, and that they were, therefore, pur-
chased in open market. In other words, there must be proof that the proper officer
has actually determined that an exigency existed. The certificate may be made in
the following form: "The exigencies of the public service required the immediate
delivery of the articles specified in the voucher, and they were, therefore, obtained
by purchase in open market, without advertisement, and at the lowest market rates."
Ibid.
Except in the case of an existing public exigency a contract for supplies in the
War Department or military branch of the service is to be preceded by an advertise-
ment for proposals as directed in section 3709, Revised Statutes. This advertisement
is not a mere facility for the convenience of an executive Department, which may be
waived at discretion, but an essential proceeding prescribed by the statute as a con-
dition to the exercise of the authority to enter into a contract for the United States.
Thus enjoined, no omission or evasion of this prerequisite, however convenient such
aSee G. 0. 10 of 1879, sees. 22-25, pp. 14-15; do. 72, ibid., p. 52; do. 40 of 1880, p. 58; also McKee v.
U.S., 12 Ct. Cls., 529-530.
6 As to the authority who is to decide whether there exists such an exigency as is contemplated by
the statute, the Supreme Court, in the United States v. Speed, 8 Wallace, 83, has held that it is " the
officer charged with the duty of procuring supplies or services who is invested with this discretion."
This description is rather general, nor is the term "the purchasing officer," by which the Court of
Claims explains it, in Thompson v. U. S., 9 Ct. Cls., 196, a much more precise definition. It is clear,
however, that a subordinate officer charged with the duty of being the immediate representative of
the United States in a contract or purchase should not, in general, venture to dispense with advertis-
ing, on the theory of the existence of a public exigency, in the absence of instructions or orders from
a proper superior. Nor, on the other hand, will a superior officer, in entering into u contract for his
command or branch of the service, properly assume that an "exigency" exists authorizing him to
dispense with the statutory forms when the period is time of peace and no imperative necessity exists
for the immediate delivery of the supplies or performance of the service proposed to be contracted
for. It is to be noted that the cases both of Speed and Thompson related to contracts entered into
during the civil war. In the instructive opinions of the Attorney-General on the "Fifteen per cent
contracts" of April 27 and May 3, 1877, XV Opin., 235, 253, it is held that the "exigency" contem-
plated by the statute can be one of time only, and that it can be regarded as existing only where an
immediate delivery or.performance is required by a public necessity. Dig. Opin. J. A. G., par. 853, notel.
MILITAEY LAWS OF THE UNITED STATES. 571
Department and other Government establishment in the
city of Washington; and the Secretary of the Treasury
shall designate the day or days in each year for the open-
ing of such proposals and give due notice thereof to the
other Departments and Government establishments. Such
proposals shall be opened in the usual way and schedules
thereof duly prepared and, together with the statement
of the proposed action of each Department and Govern-
ment establishment thereon, shall be submitted to a board
consisting of one of the Assistant Secretaries of the Treas-
ury and Interior Departments and one of the Assistant al
Postmasters-General, who shall be designated by the
heads of said Departments and the Postmaster-General,
an omission or evasion may be, can legally be allowed, (a) So, held, that it was no
excuse for a noncompliance with the statute by a quartermaster that his contracts
(made without advertisement) had been made with the most reliable parties and to
the advantage of the United States. And, held, that the requirement as to advertis-
ing for proposals must be complied with in contracting for a supply of articles pur-
chased for trial, equally as if the contract were for the regular yearly supplies. Dig.
Opin. J. A. G., par. 849.
The main object of the advertisement is to induce a free and open competition for
the contracts of the Government, and thus to protect the United States from fraudu-
lent combinations and collusive preferences in its business transactions. (6) At the
same time the advertisement, in inviting proposals from the public, is properly to be
viewed as a pledge on the part of the United States that the contract will, as a general
rule, be awarded to the lowest bidder, provided he is a responsible person and his bid
is a reasonable one, and provided, of course, he complies with the existing regulations
as to bond, etc. Ibid., par. 855. See, also, 1 Compt. Dec., 363.
A military emergency can not be measured by precise rules. Thompson v. U. S.,
9 Ct. Cls., 187. The act of March 2, 1861 (sec. 3709, E. S.), requires of a quarter-
master that openness, diligence, prudence, and care which an individual might be
supposed to exercise
such circumstances,
sarily be construed liberally.
What was right for a quartermaster to do under certain circumstances can be lawful
and right only when the precise cirsumstances are repeated. Childs & Co. v. U. S.,
4 Ct. Cls., 176.
An officer charged with the duty of making a contract or purchase is responsible
under the laws and regulations for his action. Permission or orders to make a con-
tract or purchase without inviting competition will not justify that procedure and
will not be given. Par. 597, A. R., 1901.
In the absence of any emergency in fact, or any declared by the head of the Depart-
ment in which a public work is being carried on, or any emergency that can be
judicially inferred, the requirements of this section, in respect to advertisement, are
mandatory, and a contract made in violation of it is void. Schneider v, U. S., 1"9 Ct.
Cls., 547, 551.
Personal services are such as the individual employed or contracted with must per-
aSee VI Opin. Att. Gen., 406; 10 ibid., 28; also opinion of the Solicitor-General of March 20, 1876, XV
Opin., 539, vyherein, in holding contracts made without advertising to be not binding on the United
States, he dissents from the opinion of Attorney-General Bates, in X Opin., 416, to the effect that while
an absence of the prescribed advertisement will render illegal and inoperative an unexecuted con-
tract, the Government can not, on account of such omission, rescind, to the damage of a contractor,
a contract entered into by him in good faith and partly performed. In a later opinion of April 27,
1877, XV Opin., 236, the Attorney-General refers to the question, whether the provision of section 3709,
Revised Statutes, requiring that contracts in general shall be preceded by advertisement, is mandatory
or only directory, as one which has been much discussed (see, for example, the reference to this ques-
tion in Fowler v. U. S., 3 Ct. Cls., 47), but is not required to be decided in that opinion. But what-
ever may be the true construction of this section, it is clear that no officer of the Army, in the absence
of express authority to do so from the Secretary of War, can be justified in omitting to comply with
the provision in regard to advertising.
6See Harvey v. U. S., 8 Ct. Cls., 506. In regard to a statute (similar to section 3709), governing the
Post-Office Department, the Supreme Court, in Garlield v. U. S., 3 Otto, 246, say: "The object of the
statute was to secure notice, * * * that bidders might compete, that favoritism should be pre-
vented, that efficiency and economy in the service should be obtained."
572 MILITARY LAWS OF THE UNITED STATES.
respectively, at a meeting to be called by the official of the
Treasury Department, who shall be chairman thereof, and
said board shall carefully examine and compare all the
proposals so submitted and recommend the acceptance or
mento?re'ectedrej'ec^on °^ &n^ OT a^ °^ sa^ proposals.1 And if any or
kids. a]l Of such proposals shall be rejected advertisements for
Jan. 27, 1894, s.
i,v. 28, p. 33. proposals shall again be invited and proceeded with in
the same manner. Sec. 1, act of January 27, 1894 (®8
Stat. Z., 33).
ResetricTion. 1528- Tne act entitled uAn act to amend section thirty -
v.i8,rp. 62.' 1894> seven hundred and nine of the Revised Statutes relating
to contracts for supplies in the Departments at Washing-
ton," approved January twenty-seven, eighteen hundred
and ninety -four, be, and the same is hereby, so amended
itedrcvisionslim "that the provisions thereof shall apply only to advertise-
Sec.8709,H.s. men^.g £ol> prOpOsals for- fuel, ice, stationer}7, and other
miscellaneous supplies to be purchased at Washington for
the use of the Executive Departments and other Grovern-
no^nvand' etc'' ment establishments therein named; and no advertisements
made or contracts awarded or to be awarded thereon since
January twent3r-seven, eighteen hundred and ninet}r-four,
in accordance with the laws in force prior to said date,
form, in person, directly under the control and supervision of an officer or agent of
the Government, as distinguished from services the performance of which may be
delegated by the contractor to others. Par. 596, A. R., 1901. They are contracts for
expert or skilled service to be performed by the contractor in person. Dig. Opin.
J. A. G., 231, par. 11.
Where the essential part of a contract is for personal services, advertising for pro-
posals under section 3709, Revised Statutes, is not required. 2 Compt. Dec., 185.
Section 3709 does not require the advertising for proposals, nor the entering into
contracts for the purchase of patented or copyrighted articles where the benefit of
competition can not be secured. 2 Compt. Dec., 632. For provisions of regulations
respecting purchases, etc., see paragraphs 593-597, Army Regulations of 1901.
METHODS OF PURCHASE.
A purchase of supplies or engagement of services will be made:
1. By contract, "reduced to writing and signed by the contracting parties with
their names at the end thereof." Agreements of this character only are termed
"contracts" in these regulations.
2. By written proposal and written acceptance.
3. By oral agreement.
When delivery or performance does not immediately follow an award or bargain
the first method will be used; when delivery or performance immediately follows an
award or bargain the second method may be resorted to. Par. 627, A. R., 1901.
Contracts will be made on forms furnished by the chiefs of bureaus, in cases where
such forms are applicable, and those forms will be modified only to such extent as is
necessary. All conditions will be stated therein as fully and clearly as possible.
Par. 628, ibid.
If a contract made by a subordinate is, in terms, subject to the approval of his
superior, approval is a condition precedent to the validity of the agreement. Mon-
roe and Richardson v. U. S., 35 Ct. Cls., 199; Darragh v. U. S., 33 ibid., 377.
Where a contract provides that it is subject to the approval of a designated pfficer,
such approval need not be in writing. Monroe and Richardson v. U. S., 35 Ct. Cls.,
199; Speed's Case, 8 Wallace, 77.
JFor a restriction upon the operation of this paragraph see the act of April 21, 1894
(28 Stat. L., 62). Par. 1528, post.
MILITARY LAWS OF THE UNITED STATES.
573
shall be declared to be illegal or invalid for noncompliance
with said law of January twenty-seventh, eighteen hundred
and ninety-four. Act of April 21, 1894 (28 Stat. Z., 62).
ADVERTISING.
Par.
1529
Par.
1532.~The same.
1533. Advertisements on Pacific coast.
No advertisement without author-
ity.
1530. Rates.
1531. Advertising in District of Colum-
bia; restriction.
1529. No advertisement, notice, or proposal for
Executive Department of the Government, or for any th^yj5 1870 c
Bureau thereof, or for any office therewith connected, |J| s- 2) v- 16) p-
shall be published in any newspaper whatever, except in Sec* 3828>B'S'
pursuance of a written authority for such publication from
the head of such Department; and no bill for any such
advertising, or publication, shall be paid, unless there be
presented, with such bill, a copy of such written authority.1
requirements of section 3828, Revised Statutes, are complied with by the
issue of a general circular of instructions, and it is not necessary to file authority
with each particular bill. Compt. Dec., 1893-94, 103; U. S. v. Odeneal, 10 Fed. Rep.,
616.
By the terms of section 3709, Revised Statutes, and the acts of July 5, 1884 (23
Stat. L., 109) , and February 12, 1895 (28 Stat. L., 654), advertising is required prior
to purchase in the case of "all supplies for the use of the various departments and
posts of the Army and all branches of the Army service, " including the procure-
ment of steel for gun construction. Advertising may be dispensed with in the emer-
gency contemplated in section 3709 of the Revised Statutes; in the purchase of cer-
tain ordnance stores, when the aggregate of said purchase does not exceed $200 (act
of July 16, 1892, 27 Slat. L., 174), and in the purchase of medicines and medical
supplies (act of February 27, 1893, 27 Stat. L., 478). See also notes to paragraph
1151, ante.
A disbursing officer is not authorized to pay bills for newspaper advertising when
he is satisfied that the price exceeds the commercial rates charged to private indi-
viduals, with the usual discounts, notwithstanding the affidavit of the proprietor of
the newspaper to the contrary. 1 Compt. Dec. , 312.
When the proprietors of a newspaper show by affidavit that the rates theretofore
sworn to by them were, although not so limited, intended simply to cover advertising
of a certain kind, they may be paid at their usual commercial rates for advertising
not of the kind intended by their first statement of rates. Ibid. , 373.
When advertising in connection with the purchase of subsistence supplies for the
Army is, by law, a necessary condition precedent to the purchase of such supplies,
and there is no specific appropriation for such advertising, the cost thereof is prop-
erly chargeable to the appropriation "Subsistence of the Army." 3 Dig. Comp.
Dec., 23.
Under section 3709 of the Revised Statutes and paragraph 1486 of the Army Regu-
lations (1881), the length of time for the publication of advertisements inviting
proposals for furnishing Army supplies was left somewhat to the discretion of the
purchasing officer. But the act of July 5, 1884 (23 Stat. L., 109), has fixed, in all
cases excepting emergency purchases, the minimum period during which public
notice shall be given, authorizing the purchase of "small amounts for immediate
use" after public notice of not legs than ten days, while all other purchases are
required to be made after public notice of not less than thirty days. Ibid., 23.
tinder the Army Regulations, advertisement may be made by handbills; but when
this method is resorted to it must be shown that the handbills were circulated to
such an extent as to render it probable that a large number of persons engaged in
the business of furnishing the articles desired had thus been afforded an opportunity
to compete for the contract which was to be let. Ibid., 24. See also 3 Comp.
Dec., 730.
574 MILITARY LAWS OF THE UNITED STATES.
^ Rates of adver- 153Q, Hereafter all advertisements, notices, proposals
v J2onp 216 1878) ^or contracts, and all forms of advertising required by
law for the several Departments of the Government may
be paid for at a price not to exceed the commercial rates
charged to private individuals, with the usual discounts;
such' rates to be ascertained from sworn statements to be
furnished by the proprietors or publishers of the news-
papers proposing so to advertise: Provided, That all ad-
vertising in newspapers since the tenth day of April,
eighteen hundred and seventy-seven, shall be audited and
paid at like rates; but the heads of the several Depart-
ments may secure lower terms at special rates whenever
the public interest requires it. Act of June W, 1878 (20
Stat. L., 216).
etPcrocladvaerSse- 1^31. All executive proclamations, and all treaties re-
^6^ ky -^aw ^° ^e published, shall be published in only
one newspaper, the same to be printed and published in the
19, p. 105. District of Columbia and to be designated by the Secre-
tary of State and in no case of advertisement for contracts
for the public service shall the same be published in any
newspaper published and printed in the District of Colum-
bia unless the supplies or labor covered by such advertise-
ment are to be furnished or performed in said District of
Columbia. Act of July 31, 1876 (19 Stat. Z., 105).
The same. 1532. All advertising required by existing laws to be
21, p. si?.' ' done in the District of Columbia by any of the depart-
* ments of the Government shall be given to one daily and
one weekly newspaper of each of the two principal political
parties and to one daily and one weekly neutral newspaper:
Provided, That the rates of compensation for such service
shall in no case exceed the regular commercial rate of the
newspapers selected; nor shall any advertisement be paid
for unless published in accordance with section thirty-
eight hundred and twenty-eight of the Revised Statutes.1
Act of January 21, 1881 (21 Stat. L., 317).
Ad verti^e- 1533. The Quartermaster's Department of the Army, in
plies for Quar- obtaining supplies for the military service, shall state in all
tennaster's De- e
partment. advertisements for bids for contracts that a preference
July 13, 1866, c. .
176, s. 4, v. 14, p. shall be given to articles of domestic production and manu-
sec. 37i6,B.s. facture, conditions of price and quality being equal, and
that such preference shall be given to articles of American
production and manufacture produced on the Pacific coast,
1 The subject of advertising in the War Department and its several bureaus and
offices, and in the military establishment generally, is regulated by the provisions of
paragraphs 598-602, Army Regulations of 1901. See notes to paragraph 1526, ante.
MILITARY LAWS OF THE UNITED STATES.
575
to the extent of the consumption required by the public
service there. In advertising for Army supplies the Quar-
termaster's Department shall require all articles which
are to be used in the States and Territories of the Pacific
coast to be delivered and inspected at points designated in
those States and Territories; and the advertisements for
such supplies shall be published in newspapers of the cities
of San Francisco, in California, and Portland, in Oregon.
PROPOSALS — BIDDERS' BONDS.
Par.
1537. Separate proposals and contracts.
1538. The same exception; river and
harbor works.
etc-;
1878'
Par.
1534. Secretary of War to prescribe reg-
ulations.
1535. Bidders' bonds.
1536. Opening bids.
1534. The Secretary of War is hereby authorized to
prescribe rules and regulations to be observed in the
preparation and submission and opening of bids for con-
tracts under the War Department. l Act of April 10,
1878 (20 Stat. Z., 36}.
1535. He may require every bid to be accompanied by a
written guaranty, signed by one or more responsible 22> p- 488-
persons, to the effect that he or they undertake that the
bidder, if his bid is accepted, will, at such time as may be
prescribed by the Secretary of War or the officer author-
ized to make a contract in the premises, give bond, with
good and sufficient sureties, to furnish the supplies pro-
posed or to perform the service required. If after the
acceptance of a bid and a notification thereof to the bidder
he fails within the time prescribed by the Secretary of
War or other duly authorized officer to enter into a con-
tract and furnish a bond with good and sufficient security
for the proper fulfillment of its terms, the Secretary or
other authorized officer shall proceed to contract with
some other person to furnish the supplies or perform the
service required, and shall forthwith cause the difference
between the amount specified by the bidder in default in
the proposal and the amount for which he may have con-
tracted with another party to furnish the supplies or per-
form the service for the whole period of the proposal to
be charged up against the bidder and his guarantor or Bidders.
guarantors, and the sum may be immediately recovered
by the United States for the use of the War Department
1 For regulations prepared by the Secretary of War under the authority conferred
by this statute, see paragraphs 598-626, Army Regulations of 1901.
576
MILITARY LAWS OF THE UNITED STATES.
Resans v!'
24|ec 87io,B s
in an action of debt against either or all of such persons.1
Act of March 3, 1883 (22 Stat. L., 488).
1536> Whenever proposals for supplies have been solic-
he parties responding to such solicitation shall be
duly notified of the time and place of opening the bids,
and be permitted to be present either in person or by
attorney, and a record of each bid shall then and there be
made.
1537- Whenever the Secretary of War invites proposals
^or any works, or for any material or labor for works,
there shall be separate proposals and separate contracts
for each work, and also for each class of material or labor
for each work.
1538. Nothing contained in section thirty-seven hundred
™n?ract,netc° n * and seventeen of the Revised Statutes of the United States,
modilelfcv3725i nor m section three of the river and harbor act of August
p'sec.'2, sept. 19, eleventh, eighteen hundred and eighty -eight, shall be so
1890, v. 26, p. 452. construed as to prohibit or prevent the cumulation of two
or more works of river and harbor improvement in the
same proposal and contract where such works are situated
in the same region and of the same kind or character.
Sec. 2, act of September 19, 1890 (26 Stat. Z.,
PREPARATION AND EXECUTION OF CONTRACTS.
Par.
1539. Contracts to be in writing.
1540. No member of Congress to be in-
terested.
Par.
1541. Copies to be filed with Auditor for
War Department.
s
'contacts 1539' lfc siiaU be the duty of the Secretary of War, of the
Secretary of the Navy, and of the Secretary of the Interior,
*° cause and require every contract made by them severally
on behalf of the Government, or by their officers under
them appointed to make such contracts, to be reduced to
writing, and signed by the contracting parties with their
names at the end thereof;2 a copy of which shall be filed by
the officer making and signing the contract in the Returns
Office of the Department of the Interior, as soon after the
contract is made as possible, and within thirty days,
together with all bids, offers, and proposals to him made by
persons to obtain the same, and with a copy of any adver-
tisement he may have published inviting bids, offers, or
proposals for the same. All the copies and papers in rela-
1 For requirements of regulations in respect to guaranties in support of bids and
proposals, see paragraphs 611-613, Army Regulations of 1901.
2 For instructions respecting the preparation and execution of contracts, see para-
graphs 627-637, Army Regulations of 1901.
MILITARY LAWS OF THE UNITED STATES. 577
tion to each contract shall be attached together by a ribbon
and seal, and marked by numbers in regular order, accord-
ing to the number of papers composing the whole return.1
1540. In every such contract or agreement to be made or stipulation that
* no member of
entered into, or accepted by or on behalf of the United {Jjjfgf8 has an
States, there shall be inserted an express condition that n°48AsP3 ^'2180^:
member of [or Delegate to] Congress shall be admitted to F®b. 27, i877,c.69,'
v. 19, p. 249.
any share or part of such contract or agreement, or to any sec.374i,R.s.
benefit to arise thereupon.2
1541. All contracts to be made, by virtue of any law, and t^f^SfSK-
requiring the advance of money, or in any manner connected toj^ly 31 1894 s
with the settlement of public accounts, shall be deposited ^sIc^l'j^B. s.
promptly in the offices* of the Auditors of the Treasury,
according to the nature of the contracts: Provided, That
this section shall not apply to the existing laws in regard
to the contingent funds of Congress.3 Act of July 31, 1894
(28 Stat. Z., 9AO).
1 It may be considered as settled that so much of section 3744 as provides that
all contracts shall "be reduced to writing and signed by the contracting parties
with their names at the end thereof" is mandatory, and contracts which do not
comply with its requirements are void. In looking at the scope and purpose of this
law and at the words in which it is couched, I can not doubt of the intention of Con-
gress in its enactment. To my mind it is clear that it was designed to require every
executory contract, at least, to be put in writing, so that its terms might not be mis-
taken and that the character and extent of the outstanding engagements of the United
States might at all times be known to the executive and legislative departments, or
be capable of being ascertained in a reasonable time and with appropriate exactitude.
Henderson v. U. S., 4 Ct. Cls., 75, 83. There is no class of cases in which a statute
for preventing frauds and perjuries is more needed than in this. And we think that
the statute in question was intended to operate as such. It makes it unlawful for
contracting officers to make contracts in any other way than by writing signed by
the parties. This is equivalent to prohibiting any other mode of making contracts.
Clark v. U. S., 95 U. S., 539, 542; South Boston Iron Co., 18 Ct. Cls., 165, 176;
U. S. v. Lament, 2 D. C. App., 532. The provisions of this section apply to contracts
made in emergencies. Cobb et al. v. U. S., 18 Ct. Cls., 514, 532; Clark v. U. S.,
95 U. S., 539. Offers and acceptances by letter are preliminary memoranda only
and do not constitute a valid contract within the meaning of the statute. South Bos-
ton Iron Co. v. U. S., 118 U. S., 37, 42. Where, however, a parol contract has been
wholly or partly executed on one side, the party performing will be entitled to recover
the fair value of his property or services as upon an implied contract for a quantum
meruit. Clark v. U. S., 95 U. S., 539. See also Warren & Goss v. U. S., 23 Ct. Cls.,
77; South Boston Iron Co. v. U. S., 18 ibid., 165, and 118 U. S., 37; Clark v.
U. S., 95 U. S., 543; The International Contracting Co. u, Lament, 2 Ct. App. D. C.,
532. See also Lindsley v. U. S., 4 Ct. Cls., 359; Burchiel v. U. S., 4 Ct. Cls., 549;
Bernheimer v. U. S., 5 Ct. Cls., 65. The formal execution of contracts for Gov-
ernment work, as a prerequisite for their legality and binding effect, after the
acceptance of proposals, as required by section 3744, Revised Statutes, was not dis-
pensed with by the acts of March 23, 1883 (22 Stat. L., 488), and section 3 of the
act of August 11, 1888 (25 Stat. L., 400, 423). U. S. v. Lament, 2 D. C. App., 532.
2 See paragraph 1558, post.
3 All formal written contracts connected with the settlement of public accounts
should be placed, and should remain, on file in the offices designated by law as their
proper depositories. 3 Dig. 2d Compt. Dec., 112.
Under paragraph 633 of the Army Regulations of 1901 formal written contracts are
to be executed in quintuplicate, one of which is to be filed, in accordance with section
22924—08 37
578
MILITAEY LAWS OF THE UNITED STATES.
MISCELLANEOUS REQUIREMENTS.
Par.
1542. American material preferred.
1543. Purchases, where made.
1544. Cavalry and artillery horses.
1545. The same, restriction on purchases.
1546. Draft animals, restriction.
1547. Means of transportation.
1548. Transportation of stores by con-
tract.
1549. Expenditures on buildings, restric-
tion.
Par. ,
1550. Post bakeries, schools, etc.
1551. Post gardens, exchanges.
1552. Contracts for subsistence.
1553. Purchases of steel.
1554. Purchases from Indians.
1555. Names of contractors to appear on
articles purchased.
1556. Contracts for stationery, restric-
tion.
1542. In all contracts for material for any public im-
f°ovemente im pi'ovement the Secretary of War shall give preference to
American ma-
terial preferred
American material; and all labor thereon shall be per-
1875, v. is, P. 455. formed within the jurisdiction of the United States. Sec.
2, act of March 3, 1875 (18 Stat. L.,
3743 of the Kevised Statutes, with the proper Comptroller of the Treasury, because
they are connected with the settlement of public accounts. Ibid., p. 111.
Under section 3743 of the Revised Statutes all contracts in any manner connected
with the settlement of public accounts by the Second, Third, and Fourth Auditors
and the Second Comptroller are to be deposited or filed in the Second Comptroller's
Office within ninety days after their respective dates. This statutory requirement
includes not only all formal written contracts or specialties in any manner connected
with the settlement of accounts, but also all properly authorized extensions or other
modifications of such contracts, every modification of a contract being in the nature
of a new contract and connected with the settlement of accounts. Ibid., p. 112.
Only formal written contracts are required under section 3743 of the Revised
Statutes to be filed in the office of the Second Comptroller. Informal contracts and
the papers pertaining thereto should be filed with the accounts or vouchers to which
they relate, in order to facilitate the examination and revision of accounts and
vouchers. Ibid., 109.
A separate notification is required in each case of extension of a contract, so that
it can be filed, with the contract to which it pertains, in the office of the Second
Comptroller. Otherwise notifications of extensions of contracts will fail of the
purpose contemplated in section 3743 of the Revised Statutes. Ibid., 112.
Formal written contracts made and filed in the proper office in pursuance of law
must be regarded as necessary in the settlement of public accounts or claims, and
therefore can not properly be returned either for cancellation or amendment. Ibid.
The Second Comptroller is not authorized to deliver to either of the parties to a
contract, for any purpose whatever, any contract connected with the settlement of
public accounts which has been properly placed in his custody under the provisions
of section 3743 of the Revised Statutes. Ibid.
CONTRACTORS' BONDS.
Bonds for the faithful performance of contracts for supplies or service will be required
in the following cases:
1. When the consideration is $3,000 or more, whatever may be the length of time
required for the full performance of the contract.
2. When the consideration is over $250, but less than $3,000, and the contract can
not be fully performed within thirty days from its date.
Bonds may be exacted or, in the discretion of the respective chiefs of bureaus con-
cerned, waived in the following cases:
1. When the consideration is less than $3,000 and the contract is to be fully per-
formed within thirty days from its date.
2. When the consideration is not more than $250, whatever may be the length of
time required for full performance.
3. When the contract is for furnishing meals to recruits and recruiting parties.
The amount of penalty in a contractor's bond will be fixed by the contracting
MILITAEY LAWS OF THE UNITED STATES. 579
1543. Hereafter, except in cases of emergency or
it is impracticable to secure competition, the purchase of 31Mpar^| 19°' v-
all supplies for the use of the various departments and
posts of the Army and of the branches of the army serv-
ice shall only be made after advertisement, and shall be
purchased where the same can be purchased the cheapest,
quality and cost of transportation and the interests of the
Government considered; but every open-market emer-
gency purchase made in the manner common among busi-
ness men which exceeds in amount two hundred dollars
shall be reported for approval to the Secretary of War
under such regulations as he may prescribe.1 Act of
March 3, 1901 (31 Stat. L., 905).
officer, and will not be less than one-tenth nor more than the full amount of the con-
sideration of the contract.
Nothing in this paragraph is to be construed as authorizing the waiving of bonds
required under paragraph 644. Par. 638, A. R., 1901.
When bonds for the faithful performance of contracts are exacted, they will be
made and executed with the necessary justification and certification of sufficiency of
sureties, in accordance with the instructions printed on the blank forms of con-
tractors' bonds furnished by the chief of bureaus. Such bonds must be executed by
the contractor as principal, and by a surety company, or by at least two sufficient
and responsible persons who must be citizens of the United States, as sureties. Each
must affix his signature and seal, and each signature must be attested by at least one
witness. When practicable there will be a separate witness to each signature. Par.
639. Ibid.
A company duly incorporated under the laws of the United States, or of any State,
and legally authorized to guarantee bonds, may be accepted as surety, under the
conditions prescribed in Article LVI. A firm, as such, will not be accepted as
surety, nor a partner for a copartner or firm of which he is a member. Stock-
holders who are not officers of a corporation may be accepted as sureties for such
corporation. Par. 640, ibid.
A guarantor, or the guarantors, to a bidder's guaranty may be accepted as surety,
or sureties, to the bond of the same person as contractor, provided such guarantor or
guarantors are able to justify as required for the bond. Par. 641, ibid.
The sureties, if individuals, must jointly justify in double the amount of the penalty.
The affidavit of justification must be taken before a person authorized by the laws of
the United States, State, Territory, or District, to administer oaths. Justification will
be followed by the certificate of a judge or clerk of a United States court, a United
States district attorney, United States commissioner, a judge or clerk of a State court of
record with the seal of said court attached, that the sureties are known to him, and
that, to the best of his knowledge and belief, each is worth, over and above all debts
and liabilities, the sum stated in his affidavit of justification. If found necessary,
separate certificates may be furnished as to each surety. Par. 642, ibid.
Contractors' bonds will be executed in duplicate, one to accompany the copy of
the contract which is sent to the Auditor for the War Department, and the other
retained by the officer who makes the contract. Par. 643, ibid.
When a contract is entered into for the construction of any public building, or the
prosecution and completion of any public work, or for repairs on any public building
or public work, the contractor will be required, before entering upon performance of
the same, to include in the bond given for the faithful performance of the contract
the further obligation that he will promptly make payments to all persons who sup-
ply him with labor and materials for the prosecution of the work provided for in
such contract. A certified copy of this contract and bond will be furnished to any
person who has supplied such labor or materials, upon his application to the War
Department, accompanied by an affidavit that the labor or materials have been sup-
plied by him and have not been paid for by the contractor. Par. 644, ibid.
^his enactment replaces the acts of July 5, 1884 (23 Stat. L., 109), February 27,
1893 (27 ibid., 483), August 6, 1894 (28 ibid., 233), March 15, 1898 (30 ibid., 322),
580 MILITARY LAWS OF THE UNITED STATES.
artifierylrhoreef 1544. Hereafter all purchases of horses under appropri-
23J]M09' 1884) v ations for horses fqr the cavalr}^ and artillery and for the
Indian scouts shall be made by contract, after legal adver-
tisement, by the Quartermaster's Department, under
instructions of the Secretary of War, the horses to be
inspected under the orders of the General Commanding
the Army; and no horse shall be received and paid for
until duly inspected. * Act of July 5, 1884 (®3 Stat. L. , 109).
Limitation on 1545. The number of horses purchased under this appro-
Feb. 12, 1895, v. priation, added to the number on hand, shall be limited to
1961, V. si, p.m.' the actual needs of the mounted service; and unless other-
wise ordered by the Secretary of War no part of this
appropriation shall be paid out for horses not purchased
by contract, after competition duly invited by the Quar-
termaster's Department, and an inspection by such Depart-
ment, all under the direction and authorit}^ of the Secretary
of War.2 Act of March 2, 1901 (31 Stat. Z., 906).
iimitaftofnirnurs; 1546. Hereafter no part of this appropriation shall be
chFebS>9 1887 v exPended m the purchase for the Army of draft ani-
24, jg^s; Jfcpk mals until the number on hand shall be reduced to five
4g6- thousand, and thereafter shall only be expended for the
purchase of a number sufficient to keep the supply up to
five thousand. Act of September 28, 1888 (25 Stat. L. , 486).
and section 3729 of the Revised Statutes. For regulations governing open-market
purchases, see paragraphs 645-648, Army Regulations of 1901.
It has been held by the Attorney-General that "the object of this legislation is to
secure for the Government the benefit of competition in obtaining supplies and to
prevent favoritism in making the purchases thereof. It contemplates one general
mode of purchase, namely, by contract, after advertisement, with 'the lowest respon-
sible bidder for the best and most suitable article,' with but a single exception, and
that is where an 'emergency' exists requiring the purchase to be otherwise made.
Such emergency may arise not only before the required public notice can be given,
but after it has once been given, in consequence of the failure to receive any bids or
proposals; in either case the purchase thereupon would be an emergency purchase,
and come within the requirement of the statute for an immediate report to the Sec-
retary of War for his approval. This requirement is, I think, designed to extend to
all purchases which are not made agreeably to the general mode above indicated,
and hence it applies to the purchase of parts of machinery, or parts of stoves or
ranges, for repairs, or of patented articles, when the same is (as in cases of emergency,
and those only, it may be) made in open market." XVIII Opin. Att. Gen., 349.
lrThe provisions of the act of July 5, 1884 (23 Stat, L., 109), that purchases of sup-
plies for the Quartermaster's and Commissary's departments in cases of emergency
"must be at once reported to the Secretary of War for his approval" is directory,
only, and the failure of certain officers of these departments to make reports of such
purchases does not invalidate the purchases or the payments therefor. 5 Compt.
Dec., 259.
2 This paragraph has appeared, as a proviso, in each annual appropriation bill since
June 30, 1886. See acts of June 30, 1886 (24 Stat. L., 97); February 5, 1887 (24
ibid., 398) ; September 22, 1888 (25 ibid., 485) ; March 2, 1889 (ibid., 830) ; June 13,
1890 (26 ibid., 153); February 24, 1891 (ibid., 775); July 16, 1892 (27 ibid., 179);
February 27, 1893 (ibid., 483); August 6, 1894 (28 ibid., 239); February 12, 1895
(ibid., 660). The several acts of appropriation for the support of the Army since
that of June 30, 1886 (24 Stat. L., 96), have contained a proviso that no part of the
appropriations "shall be expended for printing unless the same shall be done by
contract, after due notice and competition, except in such case as the emergency will
not admit of the giving notice for competition."
MILITARY LAWS OF THE UNITED STATES. 581
1547. Hereafter all purchases of horses, mules, or oxen
wagons, carts, drays, ships and other seagoing* vessels, y 1884 v
also all other means of transportation, shall be made by ^ P- n°-
the Quartermaster's Department, by contract, after due
legal advertisement, except in cases of extreme emergency.
Act of July 5, 1884 (®$ Stat. Z., 110).
1548. The number of draft animals purchased from this Transportation
appropriation, added to those now on hand, shall be lim- contract'.
. . , July 5, 1884, v.
ited to such numbers as are actuallv required tor the 23, p. 109; Mar.2,
„ . . 1901, V. 31, p. 907.
service; all transportation or stores by private parties
for the Army shall be done by contract, after due legal
advertisement, except in cases of emergency, which must
be at once reported to the Secretary of War for his
approval. Ibid. (23 Stat. L.,109). Act of March 2, 1901
(31 Stat. L.,907).
1549. Hereafter no expenditures exceeding five hundred ^f*ajjg55
dollars shall be made upon any building or military post, ^j^11*8 and
or grounds about the same, without the approval of the 27Fp ^847> 1898> v'
Secretary of War for the same, upon detailed estimates
by the Quartermaster's Department; and the erection, con-
struction, and repair of all buildings and other public
structures in the Quartermaster's Department shall, as far
as may be practicable, be made by contract, after due legal
advertisement. l Act of February 87 , 1893 (27 Stat. L. , 484).
1 This paragraph continued to appear as a proviso in several acts of appropriation
for the support of the Army prior to the act of February 27, 1893 (27 Stat. L., 454).
See acts of March 3, 1885 (23 Stat. L., 360) ; June 30, 1886 (24 ibid., 97) ; February
9, 1887 (ibid., 399) ; September 22, 1888 (25 ibid., 486) ; March 2, 1889 (ibid., 830);
June 13, 1890 (26 ibid., 154); February 24, 1891 (ibid., 776) ; July 16, 1892 (27 ibid.,
180) ; February 27, 1893 (ibid., 484) . The same act requires that the posts at which
hospital stewards' quarters are to be constructed shall be designated by the Secretary
of War, and that such quarters shall, whenever practicable, be built by contract.
27 Stat. L.,484.
Government contracts, by whom made, binding force, etc. — Where a public agent acts
in the line of his duty and by legal authority, his contracts made on account of the
Government are public and not personal. They inure to the benefit of and are oblig-
atory on the Government, not the officer. Hodgin v. Dexter, 1 Cranch, 345, 363;
Parks v. Ross, 11 Howard, 362. The Government is not bound by the act of its
agent, unless it clearly appear that he acted within the scope of his authority, or was
employed as a public agent to do, or was held out as having authority to do, such act.
Whiteside v. U. S., 93 U. S., 247; Lee v. Munroe, 7 Cranch, 366; Filer r. U. S., 9
Wall., 45. Where service was performed under a general appropriation, the con-
tractor is not bound to know the condition of the appropriation. Myerlev. U. S., 33
C/t. Cls., 1.
Where a contract is subject to the approval of superior authority, such approval is
a condition precedent. Monroe and Richardson v. U. S., 35 Ct. Cls., 199; Filor v.
U. S., 9 Wallace, 45. Such approval need not be in writing. Speed v. TJ. S., 8
Wallace, 77; Monroe and Richardson v. TJ. S., 35 Ct. Cls., 199, 204.
Where a contract provides that an officer named in the contract may, on inspec-
tion, accept or reject any part of the work done under it if not, in his opinion,
''strictly in accordance with the drawings and specifications," his decision, in the
absence of fraud, or such gross error as would imply bad faith, is final. Driscoll v.
U. S., 34 Ct. Cls., 508. Such action on the part of the officer being final and con-
clusive, it. becomes the duty of the contractor, at his own expense, to "remedy any
defect or unsatisfactory material or work" so rejected, by conforming the same to
582 MILITAEY LAWS OF THE UNITED STATES.
schools ^t^h8- !550. For the current fiscal year and thereafter there
e^unerdi3nsi89o" may be expended from the appropriation for regular sup-
v. 26, p. 152. plies the amounts required for the necessary equipments
of the bakehouse to carry on post bakeries; for the neces-
sary furniture, text-books, paper, and equipments of the
post schools; for the tableware and mess furniture for
kitchens and mess halls; * * * each and all for use of
the enlisted men of the Army. Act of June 13, 1890 (26
Stat. Z., 152).
an^°exc£igesns 1551. Hereafter no money appropriated for the support
27Jplyi7s' 1892> v' °^ the Army shall be expended for post gardens or ex-
changes, but this proviso shall not be construed to prohibit
the use by post exchanges of public buildings or public
transportation when, in the opinion of the Quartermaster-
General, not required for other purposes. Act of July 16,
1892(27 Stat. Z., 178).
subsStenc? sup- 1552. Contracts for subsistence supplies for the Army,
plApr 14 1818 c made ^J the Commissary-General, on public notice, shall
Mar 73^836Pc449; Proyide f°r a complete delivery of such articles, on inspec-
5ii Iz'isei'c7!?^011' ^ sucn places as shall be stipulated.
Seci 8715,'B. S.' s. 10, v. 12, p. 220
steeirchase °f 1553. No contract for the expenditure of any portion of
26Fe*767' 1891> v' ^ne money herein provided, or that may be hereafter pro-
vided, for the purchase of steel sir 11 be made until the
same shall have been submitted to public competition by
the Department by advertising. Act of February 2^
1891 (26 Stat. Z., 767).
from Indians8 es 15§4. The Secretary of War is hereby authorized and
4 v&26 *p '72i91' s' directed when making purchases for the military posts or
service on or near Indian reservations to purchase in open
market, from the Indians as far as practicable, at fair and
reasonable rates, not to exceed the market prices in the
localities, any cattle, grain, hay, fuel, or other produce or
merchandise they may have for sale and which may be
the drawings and specifications. Kihlberg v. U. S., 97 U. S., 97; Kimball v. U. S.,
24 Ct. Cls., 122; Gleason v. Gosnell, 33 C. Cls. R., 65; Quinn v. U. S., 99 U. S., 32;
Sweeny v. U. S., 109 ibid., 618; Martinsburg Co. v. March, 114 ibid., 549; Chicago
R. R. Co. v. Price, 38 ibid., 185; Ogden v. U. S., 60 Fed. Rep., 725; Elliott v. R. R.
Co., 74 ibid., 711.
Where extensions of time are granted to complete a contract, all prior delays or
defaults are waived and can not be revived. Gleason & Gosnell v. U. S., 33 Ct. Cls.,
65; Pigeon v. U. S., 27 ibid, 167, 175.
Where additional work was necessary, and the officer in charge ordered it to be
done, and the Government received the benefit of it, the Government is liable.
Haliday v. U. S., 33 Ct. Cls., 453.
Where performance is prevented by act of God no breach can be assigned, although
no reference was made thereto in the contract. Gleason & Gosnell v. U. S., 33 Ct.
Cls., 65; McDermott v. Jones, 2 Wall., 1, 7; Satterlee, administrator, v. U. S., 30
Ct Cls., 31, 50, and ca^es there cited.
MILITARY LAWS OF THE UNITED STATES. 583
required for the military service. Sec. 4-> act of January
19, 1891 (26 Stat. L., 721).
1555. Every person who shall furnish supplies of any tr^^eto°^ c£n~
kind to the Army or Navy shall be required to mark and on -supplies^ c
distinguish the same with the name of the contractor fur- 200, s. 15, V. 12,' p!
nishing such supplies, in such manner as the Secretary of s«c. 3731, K. s.
War and the Secretary of the Navy may, respectively,
direct; and no supplies of any kind shall be received
unless so marked and distinguished.
1556. It shall not be lawful for any of the Executive De- ^^f etf£
partments to make ' contracts for stationery or other sup-j™jted to one
plies for a longer term than one year from the time the R^NO?^ V185|;
contract is made. Psec?3735, B. s.
ASSIGNMENTS.
1557. No contract or order, or any interest therein, shall Transfers of
contracts pronib-
be transferred by the party to whom such contract or order ited.
„ July 17, 1862, c.
is given to any other party, and any such transfer shall 200, s. 14, v. 12, p.
cause the annulment of the contract or order transferred, sec. 3737, R. s.
so far as the United States are concerned. All rights of
action, however, for an}^ breach of such contract by the
contracting parties, are reserved to the United States.1
clause is imperative and bars any action by the assignor as well as the
assignee. Wanless v. U. S., 6 Ct. Cls., 123. The purpose of the act o.f July 17, 1862
(sec. 3737, R. S.), prohibiting the transfer of Government contracts, was to secure
the personal attention and services of the contractor and to render him liable to
punishment undersection 16 of the same act. * * * No formal or written trans-
fer is necessary to bring thp case within the prohibition of the act. It is sufficient to
annul the contract that the facts disclose a substantial transfer. Francis v. U. S., 11
Ct. Cls., 638; Wheelan v. U. S., 5 Ct. Cls., 504; McCord's Case, 9 Ct. Cls., 155.
In view of the positive prohibition of section 3737, Revised Statutes, that no con-
tract or interest therein shall be transferred by the contractor, and the further pro-
vision that any such transfer shall ope'rate as an annulment of the contract, "so far
as the United States are concerned," held that an officer of the Army representing
the United States in a contract for military transportation would not be authorized,
of his own discretion, to consent or wraive objection to an assignment, in whole or
in part, of a contract, by the contractor, so as to admit the assignee to perform the
service. (a) I ig. Opin. J. A. G., par. 897.
Where a contract has been once formally entered into with a certain party, for the
officer representing the United States to assume to admit additional parties into the
a That an assignment of a contract transfers no legal claim or right of action to the assignee, and
that a contract when assigned is no longer binding upon the United States, see Wheeler v. U. S., 5 Ct.
Cls., 504; Wanless v. U. S., 6 ibid., 123; Gill i>. U. S., 7 ibid., 523; McCord v. U. S., 9 ibid., 156; Francis
v. U. S., 11 ibid., 638; X Opin. Att. Gen., 523. But it has been held by the Attorney-General that the
statute on the subject (sec. 3737, R. S.) is intended simply for the benefit and protection of the United
States, which, therefore, is not compelled to avail itself of a transfer by the contractor to annul the
contract, but may recognize the same and accept and pay th(; > -signee. "Were it to be held,"
observes the Attorney-General, " that a transfer of an interest wour: absolutely avoid the contract, it
would enable any party making a contract with the United States f avoid it by simply transferring an
interest therein, which isa construction manifestly inadmissible." Opinion in the case of the "Fifteen
per cent contracts " (XV Opins., 235). And similarly held by the tame authority in a later opinion, in
XVI Opins., 277, that while the United States may avail itself of an assignment to declare the contract
annulled, it is not required to do so, but, if deemed to be for its interests, may recognize the assignee.
But it is clear that an officer of the Army could not properly assume to* treat an assignment of a con-
tract (or interest therein) as valid without the authority and direction of the Secretary of War. That
for a mail contractor to contract with another person 'to transport the mail for him, and as his serv-
ant or employee, was not an assignment of his contract with the United States, was held in the recent
case of Frye v. Burdick, 67 Maine, 408.
584
MILITARY LAWS OF THE UNITED STATES.
PENAL OFFENSES.
Par.
1558. Members of Congress not to be in-
terested in contracts.
1559. The same; what interest allowable.
1560. The same; stipulation to be inserted.
1561. The same; penalty.
1562. Consideration for procuring con-
tract, etc.
Par.
1563. Compensation in matter to which
United States is a party.
1564. Bribery of public officer.
1565. Accepting bribe.
1566. Extortion.
to 1558- No Member of or Delegate to Congress shall
contractsSted in directly or indirectly, himself, or by any other person in
48/sPi' vVjftsS'- trust for him, or for his use or benefit, or on his account,
389ny2i8 p87n7Ct undertake, execute, hold, or enjoy, in whole or in part,
sec. 3739, U.S. any contract or agreement made or entered into in behalf
agreement and undertaking (thus in fact consenting to a transfer by the contractor
of an interest in the contract), would be wholly unauthorized. Ibid., par. 898.
A mere power of attorney given by a contractor to another person authorizing him
to receive for the contractor moneys coming due under the contract can not, of
course, operate as a transfer of an interest therein; but where, by a written agree-
ment between a contractor and another party, the latter was empowered to receive
the payments from the United States, in consideration of which he undertook to con-
tinue and complete the work contracted for, held that such agreement was a power
coupled with an interest, and operated as a transfer within the meaning of section
3737, Revised Statutes. (6) Ibid., par. 899. A contractor with the United States for
the construction of a public improvement does not, by contracting with a third party
to furnish material for such work, make an assignment or a transfer of his contract
within the prohibition of section 3737, Revised Statutes. U. S. v. Farley, 91 Fed.
Rep., 474.
Under no circumstances can the United States permit or recognize the transfer of
a contract to a third party, for the reason that such transfers are prohibited by sec-
tion 3737 of the Revised Statutes, and that, if the United States could permit any
such transfer, its assent would release the sureties on the contractor's bond. 3 Dig.
2ndCompt. Dec., 113.
Under section 3737, Revised Statutes, the assignment of a contract wholly invali-
dates it, unless the Government elects to treat it as still in force. Where the Gov-
ernment accepts from the assignee work or materials under the contract, or permits
a part performance, it ratines the assignment, (c) Where the War Department
assented to the transfer of a contract for the manufacture of ordnance from one iron
works to ariother, and accepted deliveries from the latter, held that the contract
remained in full force. Dig. Opin. J. A. Gen., p. 299, par. 61.
An assignment, to have the effect of invalidating a contract, need not be express,
nor need it be technical, formal, or written, (d) It may be evidenced by the various
facts or circumstances illustrating the relations and intention of the parties. Ibid.,
par. 902.
This provision is intended only for the protection of the United States. The Gov-
ernment may avail itself of the assignment or transfer to annul the contract, but it is
not compelled to do so. XVI Opin. Att. Gen., 278; 15 ibid., 236. Dulaney v. Scud-
der94, Fed. Rep., 6.
There is a distinction between the assignment of a Government contract and an
assignment of a claim for money due under a contract. The former is void under
the act of July 17, 1862 (sec. 3737, R. S.), and passes no title, legal or equitable; the
latter passes title to the money due, as though it were the sale of a chattel. McCord
v. U. S., 9 Ct. Cls., 155; Lawrence v. U. S., 8 ibid., 252. The sale of a quarter-
master's voucher by a contractor to a third party works a transfer of his claim against
the Government, or of so much of it as is represented by the voucher. But such
vouchers are in no sense negotiable paper, and the purchaser will take them subject
to all the equities that may exist against a contractor. Lawrence & Crowell v, U. S.,
bSee authorities above cited, XV Opin. Att. Gen., 236; 16 ibid., 277; Francis v. U. S., 11 Ct. Cls., 638
c Wheeler v. U. S., 5 Ct. Cls., 604.
d Francis v. U. S., 11 ibid., 638.
MILITARY LAWS OF THE UNITED STATES. 585
of the United States, by any officer or person authorized
to make contracts on behalf of the United States. Every
person who violates this section shall be deemed guilty of
a misdemeanor, and shall be fined three thousand dollars.
All contracts or agreements made in violation of this sec-
tion shall be void; and whenever any sum of money is ad-
vanced on the part of the United States, in consideration "
of any such contract or agreement, it shall be forthwith
repaid; and in case of refusal or delay to repa}^ the same,
when demanded, by the proper officer of the Department
under whose authority such contract or agreement shall
have been made or entered into, every person so refusing
or delaying, together with his surety or sureties, shall be
forthwith prosecuted at law for the recovery of any such
sum of money so advanced.1
1559. Nothing contained in the preceding section shall
extend, or be construed to extend, to any contract or agree- ^ yp;
ment made or entered into, or accepted by any incorpo- pfJ^g7' 1877'v' 19>
rated company, where such contract or agreement is made Sec-87*0' R-s-
8 ibid., 252. An officer purchasing an article is without authority of law to issue a
voucher for the purchase money to a third person, at the vendor's request, there being
no privity of contract between the United States and such third person. Johnston v.
U. S., 13"ibid., 217.
It has, however, been held that section 3477, which prohibits or makes null and
void all transfers and assignments of claims against the Government does not apply
to involuntary assignments in bankruptcy (Erwint>. United States, 97 U. S., 392),
or even to voluntary assignments for the benefit of creditors (Goodman v. Niblack,
102 U. S., 556). It seems to me that the reasoning of these cases applies with equal
force to section 3737. 2 Compt. Dec., 50.
Under sections 3477 and 3737 of the Revised Statutes, a person having a contract
can not assign any part of the money coining to him thereunder so as to affect any one
but himself, and the acceptance by a disbursing agent of the United States of an order
upon such fund has no validity against third persons. Greeneville Sav. Bank et al.
v. Lawrence et al., 76 Fed. Rep., 545.
1 Under sections 3739-3742, Revised Statutes, it is illegal for an officer of the United
States to enter into a contract or make a purchase of a firm or association (not incor-
porated) of which a Member of or Delegate to Congress is a member, or in which
one is pecuniarily interested. (a) Dig. Opin., Opin. J. A. G., par. 895.
Paragraph 671 of the Army Regulations of 1901 prohibits purchases by officers of
the Army "from any other person in the military service." Held that this prohibi-
tion did not embrace civilians employed in the public service under the War Depart-
ment, or in connection with the military administration, and therefore did not
preclude the making of a contract by an ordnance officer, as representing the United
States, with a civil employee at an arsenal, for the use of an invention patented by
the latter. (b) Ibid., par. 896.
The form of a proposed contract contained the stipulation that ' ' no person belong-
ing to or employed in the military service of the United States is or shall be admitted
to any share or part of this contract." The description "person employed in" is
understood to mean all such clerks, mechanics, laborers, or other civilians as are
legally employed by the military authorities in or in connection with military works,
operations, or other authorized transactions. So where a lowest bidder was a civilian
laborer at the Springfield Armory, advised that the contract be made with the next
lowest bidder, who was under no such incapacity. Ibid., 296, par. 52.
a That section 3739, Revised Statutes, does not affect contracts made with persons who have been
simply elected Members of or Delegates to Congress, but have not actually become such by being
sworn in— see opinion of the Attorney-General of May 19, 1877 (XV Opins. Att. Gen. ), citing 16 ibid., 406.
6 See U. S. v. Burns, 12 Wallace, 251, 252; X Opins. Att. Gen., 2; 20 ibid., 329.
586 MILITARY LAWS OF THE UNITED STATES.
for the general benefit of such incorporation or company;
nor to the purchase or sale of bills of exchange or other
property by any Member of or Delegate to Congress,
where the same are ready for delivery, and payment there-
for is made, at the time of making or entering into the
contract or agreement.
that noUMember 1^60. In every such contract or agreement to be made or
an interest88 has ^^red into, or accepted by or on behalf of the United
48AsP3 vV80^ States, there shall be inserted an express condition that no
v\b9'2p'^897>c'69' 'Member of for Delegate to] Congress shall be admitted to
sec.374i,R.s. any share or part of such contract or agreement, or to any
benefit to arise thereupon.1
Ip^Tsos c 1561. Every oflfoer who, on behalf of the United States,
Feb 27Vi877 *c469: directly or indirectly makes or enters into any contract,
R s bargain, or agreement, in writing or otherwise, other than
such as are hereinbefore excepted, with any Member of or
Delegate to Congress, shall be deemed guilty of a misde-
meanor, and shall be fined three thousand dollars.1
1562> Every member of Congress or any officer or agent
e Government who, directly or indirectly, takes, re-
jy leic cerves? or agrees to receive, any money, property, or other
18Feb 2! i863?7c valuable consideration whatever, from any person for pro-
61slc ^rfi^.'s. curin£o or aiding to procure, any contract, office, or place,
from the Government or any Department thereof, or from
any officer of the United States, for any person whatever,
or for giving any such contract, office, or place to any
person whomsoever, and every person who, directly or
indirectly, offers or agrees to give, or gives, or bestows
any money, property, or other valuable consideration
whatever, for the procuring or aiding to procure any such
contract, office, or place, and every member of Congress
who, directly or indirectly, takes, receives, or agrees to
receive any money, property., or other valuable considera
tion whatever after his election as such member, for his
attention to,, services, action, vote, or decision on any
question, matter, cause, or proceeding which may then be
pending, or may by law or under the Constitution be
brought before him in his official capacity, or in his place
as such member of Congress, shall be deemed guilty of a
misdemeanor, and shall be imprisoned not more than two
years and fined not more than ten thousand dollars. And
any such contract or agreement may, at the option of the
President, be declared absolutely null and void; and any
member of Congress or officer convicted of a violation of
1 See note to section 1558 p. 585.
MILITAEY LAWS OF THE UNITED STATES. 587
this section shall, moreover, be disqualified from holding
any office of honor, profit, or trust under the Government
of the United States.1
1563. No Senator, Representative, or Delegate, after ^®* XJ^*^*I}J
election and during- his continuance in office, and no head matters to which
United States is
of a Department, or other officer or clerk in the employ a Pjrty- Igg4
of the Government, shall receive or agree to receive any 119, v. is' p. 122 C
. Sec. l<s_, K.s.
compensation whatever, directly or indirectly, for any
services rendered, or to be rendered, to any person, either
by himself or another, in relation to any proceeding, con-
tract, claim, controversy, charge, accusation, arreet, or
other matter or thing in which the United States is a
party, or directly or indirectly interested, before any
Department, court-martial, Bureau, officer, or any civil,
military, or naval commission whatever. Every person
offending against this section shall be deemed guilty of a
misdemeanor, and shall be imprisoned not more than two
years, and fined not more than ten thousand dollars, and
shall, moreover, by conviction therefor, be rendered for-
ever thereafter incapable of holding any office of honor,
trust, or profit under the Government of the United
States.1
1564. Every person who promises, offers, or gives, or
causes or procures to be promised, offered, or given, any
money or other thing of value, or makes or tenders any 7&Msag \1^23> £
contract, undertaking, obligation, gratuity, or security for74^^ 1866 c
the payment of money, or for the delivery or convey ance ™*, s. 62, v. 14, p.
of anything of value, to any officer of the United States, 2oiUsy358V18u' p*
or to any person acting for or on behalf of the United States 18^ g v Wor
in any official function, under or by authority of any T&^c2t^fi^'f
department or office of the Government thereof, or to an}^
officer or person acting for or on behalf of either House
of Congress, or of any committee of either House, or both
Houses thereof, with intent to influence his decision or
action on any question, matter, cause,* or proceeding which
may at any time be pending, or which may by law be
brought before him in his official capacity, or in his place
of trust or profit, or with intent to influence him to com
1 Sections 1781 and 1782 make it illegal for an officer of the United States to have
such connection with a Government contract as an agent, attorney, or solicitor assumes
when he procures or aids to procure such a contract for another, or when he prose-
cutes for another against the Government any claim founded on a Government con-
tract. But they do not prohibit executive officers of the Government, including
pension agents, from contracting directly with the Government as principals in matters
separate from their offices and the performance of their official duties, or being inter-
ested in such contracts after they are procured. XIV Opin. Att. Gen., 482; ibid., 133.
No person dealing with a public officer can be permitted to influence him in a way
prejudicial to the Government. Garman v. U. S., 34 Ct. Cls., 237.
588 MILITARY LAWS OF THE UNITED STATES.
mit or aid in committing, or to collude in, or allow, any
fraud, or make opportunity for the commission of any
fraud, on the United States, or to induce him to do or omit
to do any act in violation of his lawful duty, shall be pun-
ished as prescribed in the preceding section.1
offic^ccep^S 1565> EverJ officer of the United States, and every per-
bribfdetc son acting f°r or on behalf of the United States, in any
76Msar68V18if ' p' offici^ capacity under or by virtue of the authority of any
74juiyi3 i860 c department or office of the Government thereof; and every
168' s' 62> v' 14' P' °fficer or person acting for or on behalf of either House
2oiUsly358'v18M' c' °^ Congress, or of any committee of either House, or of
18Mar 3 1875 c both Houses thereof, who asks, accepts, or receives any
14Secl55oipR4s>'money<» or anv contract, promise, undertaking, obligation,
gratuity, or security for the payment of money, or for the
delivery or conveyance of anything of value, with intent to
have his decision or action on any question, matter, cause,
or proceeding which may, at any time, be pending, or which
may be by law brought before him in his official capacity,
or in his place of trust or profit, influenced thereby, shall
be punished as prescribed in the preceding section.2
unHeedrs°tfate! 1566- Every officer of the United States who is guilty
uonty °f ext°r" °* extortion under color of his office shall be punished by
65Msari23'v824' p' a fine °^ no^ more tnan fiye hundred dollars, or by inipris-
118viar 3 1875 c onment n°t Hiore than one year, except those officers or
l4MaVr; 38'iP75,7c: agents of the United States otherwise differently and spe-,
480 v 18> PP 4?9> Cia^7 provided for in subsequent sections of this chapter.
Sec. 5481, B.S.
1 Though an officer may have full power to enter into a contract, yet the contract
may be void for fraud as having been made by the collusion of the officer, and all
negotiations and circumstances surrounding the contract, as well as its terms, may be
examined to prove fraud. Hitchcock v. City of Galvestion, 3 Woods, 292. Three
persons, one of them the Government agent who had charge of letting the contract,
entered into an agreement by which two were to do the work, and each was to have
one-third of the profits. Held that such a contract was a fraud on the Government,
and that an action founded thereon by one partner against the other could not be
maintained. Bartle v. Coleman, 3 Cranch, C. C., 283.
2 An agreement to use personal influence with a Government agent in order to pro-
cure a Government contract is void. So wrhere plaintiff, being consul-general of the
Turkish Government, agreed with defendant to use his personal influence with a
special agent of the Turkish Government to procure contracts between that Govern-
ment and defendant, and did use such influence with success, it was held that
plaintiff could maintain no action for his services in procuring such contracts.
Oscanyan v. Arms Company, 13 Otto, 261.
For the penalty referred to in this paragraph see section 5500, Revised Statutes,
which provides that "every person who promises, offers, gives, or causes or procures
to be promised, offered, or given, any money or other thing of value, or makes or
tenders any contract, undertaking, obligation, gratuity, or security for the payment
of money, or for the delivery or conveyance of anything of value, to any member of
either House of Congress, either before or after such member has been qualified or
has taken his seat, with intent to influence his vote or decision on any question, mat-
ter, cause, or proceeding wrhich may be at any time pending in either House of Con-
gress, or before any committee thereof, shall be fined not more than three times the
amount of money or value of the thing so offered, promised, given, made, or tendered,
or caused or procured to be so offered, promised, given, made, or tendered, and shall
be, morever, imprisoned not more than three years."
MILITARY LAWS OF THE UNITED STATES.
589
THE RETURNS OFFICE.
Par.
Par.
1569. Penalty for omission to make re-
turn.
1570. Instructions to be furnished.
- 93> v- 12> p-
Sec.3744,u.s.
1567. The returns office; contracts to be
in writing.
1568. Oath to return, etc.
1567. It shall be the duty of the Secretary of War, of
the Secretary of the Navy, and of the Secretary of tfo
Interior to cause and require every contract made by
them severally on behalf of the Government, or by their
officers under them appointed to make such contracts, to
be reduced to writing", and signed by the contracting par-
ties with their names at the end thereof; a copy of which
shall be filed by the officer making and 'signing the con-
tract in the Returns Office of the Department of the Inte-
rior, as soon after the contract is made as possible, and
within thirty days, together with all bids, offers, and pro-
posals to him made by persons to obtain the same, and
with a copy of any advertisement he may have published
inviting bids, offers, or proposals for the same. All the
copies and papers in relation to each contract shall be
attached together by a ribbon and seal, and marked by
numbers in regular order, according to the number of
papers composing the whole return.1
1 It may be considered as settled that so much of section 3744 as provides that all
contracts shall "be reduced to writing and signed by the contracting parties with
their names at the end thereof" is mandatory, and contracts which do not comply
with its requirements are void. In looking at the scope and purpose of this law and
at the words in which it i-s couched, I can not doubt of the intention of Congress in
its enactment. To my mind it is clear that it was designed to require every execu-
tory contract, at least, to be put yi writing so that its terms might not be mistaken
and that the character and extent of the outstanding engagements of the United
States might at all times be known to the executive and legislative departments, or
be capable of being ascertained in a reasonable time and with appropriate exactitude.
Henderson v. U. S., 4 Ct, Cls., 75, 83. There is no class of cases in which a statute
for preventing frauds and perjuries is more needed than in this. And we think that
the statute in question was intended to operate as such. It makes it unlawful for
contracting officers to make contracts in any other wray than by writing signed by
the parties. This is equivalent to prohibiting any other mode of making contracts.
Clark v. U. S., 95 U. S., 539, 542; South Boston Iron Co., 18 Ct, Cls., 165, 176. The
provisions of this section apply to contracts made in emergencies. Cobb et al. r.
U. S., 18 Ct. Cls., 514, 532; Clark r. U. S., <J5 U. S., 539. Offers and acceptances by
letter are preliminary memoranda only, and do not constitute a valid contract within
the meaning of the statute. South Boston Iron Co. v. U. S., 118 U. S., 37, 42. Where,
however, a parol contract has been wholly or partly executed on one side, the party
performing will be entitled to recover the fair value of his property or services as
upon an implied contract for a quantum raeruit. Clark v. U. S., 95 U. S., 539. See
also Warren & Goss v. U. S., 23 Ct. Cls., 77; South Boston Iron Co. v. U. S., 18 ibid.,
165, and 118 U. S., 37, Clark v. U. S., 95 U. S., 543; The International Contracting
Co. v. Lamont, 2 Ct. App. D. C., 532. See also Lindsley v. U. S., 4 C. Cls. K., 359;
•Burchiel r. U. S., 4 Ct. Cls., 549; Bernheimer r. U. S., 5 Ct. Cls., 65.
The verification and return provided for in these sections have been held to be
mandatory only upon the officer who made the contract, A contract reduced to
writing and executed with all the formality which the law requires will not be invali-
590 MILITARY LAWS OF THE UNITED STATES.
etOath to return, 1568 jt ghall be the further duty of the officer, before
ie£l$Sfii.s. making his return, according to the preceding section, to
affix to the same his affidavit in the following form, sworn
to before some magistrate having authority to administer
oaths: "I do solemnly swear (or affirm) that the copy of
contract hereto annexed is an exact copy of a contract
made by me personally with - — ; that I made the same
fairly without any benefit or advantage to myself, or
allowing any such benefit or advantage corruptly to the
said - — , or any other person; and that the papers
accompanying include all those relating to the said con-
tract, as required by the statute in such case made and
provided."
omfuVng f to 1569. Every officer who makee any contract, and fails or
mge returns, neglects to make return of the same, according to the pro-
sec.8746,B.s. visions of the two preceding sections, unless from unavoid-
able accident or causes not within his control, shall be
deemed guilty of a misdemeanor, and shall be fined not
less than one hundred dollars nor more than five hundred,
and imprisoned not more than six months.
be'SSSffi810 1570' Tt sha11 be the duty of the Secretary of War, of
!ec.'87«^B.s. ^e Secretary, of the Navy, and of the Secretary of the
Interior to furnish every officer appointed by them with
authority to make contracts on behalf of the Government
with a printed letter of instructions, setting forth the
duties of such officer under the two preceding sections,
and also to furnish therewith forms, printed in blank, of
contracts to be made, and the affidavit of returns required
dated by a failure of the officer to make a proper return of the same. That is made
his exclusive duty by the law, and he alone is to be punished for it by the stringent
and severe penalties prescribed by the act. Henderson v. U. S., 4 Ct. Cls., 75, 81;
Clark v. U. S., 95 U. S., 539; Power v. U. S., 18 Ct. Cls., 263.
A mere understanding or oral agreement can not constitute a contract in the War
Department. Were it not indeed for the provisions of section 3744, Revised Statutes,
the acceptance of a bid would, under the general law of contracts, bind the United
States. But this section has been construed by the Supreme Court as being in the
nature of a statute of frauds and mandatory in its requirements, and therefore mak-
ing it essential that a contract, to be legal and obligatory, shall be in writing and
signed by the parties, (a) The mere proposal of a bidder, accepted on the part of the
Government, does not therefore operate as a contract, but is simply a proceeding pre-
liminary to contract; nor does such an acceptance bind the United States to enter
into a contract. Dig. Opin. J. A. Gen., 295, par. 48:
It is proper to remark that in the event of a suit being instituted against a principal
or surety on a contract of the United States, the copy of the contract filed in the
Returns Office would have no evidential value, and a copy of the original filed in the
office of the Comptroller of the Treasury under the provisions of section 3743, Revised
Statutes, paragraph 1185, supra, would have to be produced subject to the authenti-
cation required in section 886 of the Revised Statutes.
a Clark v. U. S., 95 U. S., 539; South Boston Iron Co. v. U. S., 118 U. S., 37.
MILITARY LAWS OF THE UNITED STATES.
591
to be affixed thereto, so that all the instruments may be as
nearly uniform as possible.1
COPY FOR AUDITOR OF TREASURY FOR WAR DEPARTMENT.
1571. All contracts to be made by virtue of any law, and fll^n^actsto be
requiring the advance of money, or in any manner con- toj^ly 31> 1894 s
nected with the settlement of public accounts, shall be18^c-
deposited promptly in the offices of the Auditors of the
Treasury, according to the nature of the contracts: Pro-
vided, That this section shall not apply to the existing
laws in regard to the contingent funds of Congress.2 Act
of July 31, 1894 (%8 Stat. L., 210).
THE EIGHT-HOUR LAW.
Par.
Par.
1574. The same; penalty.
1575. Ihe same; exceptions.
1572. Eight hours to be a day's work.
1573. The same; contracts, emergencies.
1572. Eight hours shall constitute a day's work for all
laborers, workmen, and mechanics who may be employed Sec- 3738' R-s-
by or on behalf of the United States.3
1573. That the service and employment of all laborers
and mechanics who are now or may hereafter be employed gej£iesj 1892
by the Government of the United States, by the District 27> P- 34°-
of Columbia, or by any contractor or subcontractor upon
any of the public works of the United States or of the said
District of Columbia, is hereby limited and restricted to
eight hours in any one calendar day, and it shall be unlaw-
ful for any officer of the United States Government or of
the District of Columbia or any such contractor or sub-
contractor whose duty it shall be to employ, direct, or con-
1 For requirements of regulations in respect to the furnishing of contracts, and
papers pertaining thereto, to the Returns Office of the Interior Department, see.
2 See, for other requirements of law and regulations in respect to the disposition of
copies of contracts, paragraphs 1539 and 1567, ante.
* Congress has power to regulate the hours of labor which may be required or per-
mitted on public works of the United States, though such works may be carried on
within the territorial jurisdiction of a State. U. 8. v. San Francisco Bridge Co., 88
Fed. Rep., 891.
The eight-hour law is in the nature of a direction from a principal to his agentt in
which third party has no interest. It does not make a contract, nor prevent officers
from contracting, by express agreement, for day's labor of more or less than eight
hours. Martin v. IT. S., 12 Ct. Cls., 87 and 94 U. S., 400.
The eight-hour law does not establish an inflexible rule for the payment of wages.
Its intent is not to increase wages, but to elevate the condition of laboring men by
diminishing their hours of labor. Averill v. U. S., 14 Ct. Cls., 200.
Section 3738, Revised Statutes, providing that eight hours shall constitute a day's
work ' ' for all laborers, workmen, and mechanics ' ' in the employ of the Government,
does not include a night watchman employed in a Government office. Gordon v.
U. S., 31 ibid., 254. '
592 MILITARY LAWS OF THE UNITED STATES.
trol the services of such laborers or mechanics to require
or permit any such laborer or mechanic to work more than
eight hours in any calendar day except in case of extraor-
dinary emergency.1 Act of August 1, 1892 (27 8tat. Z.,
340).
violation by offi- 1574- Tnat anv °fficer or agent of the Government of the
celecC™ibMtOT' United States or of the District of Columbia, or any con-
tractor or subcontractor whose duty it shall be to employ,
direct, or control any laborer2 or mechanic employed upon
any of the public works of the United States or of the
District of Columbia who shall intentionally violate any
provision of this act, shall be deemed guilty of a misde-
meanor, and for each and every such ofi'ense shall upon
conviction be punished by a fine not to exceed one thousand
dollars or by imprisonment for not more than six months,
or by both such fine and imprisonment, in the discretion of
the court having jurisdiction thereof.3 Sec. 2, ibid.
1 The term " extraordinary emergency," employed in the first section of the act of
August 1, 1892, can not properly be construed in advance as referring or applicable
to any particular class of cases. The question whether there is or was such emer-
gency should be left to be determined by the facts of each special instance as it
arises. A case in which it appeared that a compliance with the statute was not pos-
sible might well be held to be one of "extraordinary emergency." Dig. Opin. J. A.
G., par. 1239.
2 Held, that the term " laborer," as used in the act of 1892, was apparently intended
in a comprehensive sense, and that to declare certain classes of employment as
" peculiar," and therefore excepted from the operation of the act, would be a restric-
tion not warranted by the language of the statute. Thus a proposed regulation
excepting "watchmen, messengers, teamsters, engineers, firemen, seamen," and some
others, as not included in the description "laborers and mechanics," not recom-
mended to be adopted. Dig. Opin. J. A. Gen., 380, par. 4.
Seamen on a Government vessel are employed upon the "public works of the
United States" within the meaning of the act of August 1, 1892 (27 Stat. L., 340),
when engaged in removing obstructions to navigation in rivers and harbors, and to
exact from them more than eight hours' labor per day at this work or in the actual
care and repair of appliances necessary to carry it on will subject the offender to
indictment. U. S.-r. Jefferson, 60 Fed. Rep., 736.
Extra pay fixed by statute for services in excess of eight hours a day is a matter of
public policy which can not be interfered with by a postmaster." Rush r. U. S., 25
Ct. Cls., 223.
A timber dry dock is one of the "public works" of the United States under the
eight-hour law of August 1, 1892. XX Opin. Att. Gen., 445.
* The original statute on this subject — the act of June 25, 1868, incorporated in
section 3738, Revised Statutes — merely provided that eight hours should "constitute
a day's work" for laborers, etc., employed by the United States. It has been held
by the Supreme Court, U. S. v. Martin, 94 U. S., 400, (a) that this enactment was
merely "a direction by the Government to its agents," not "a contract between the
Government and its laborers, that eight hours shall constitute a day's work," and
that it did not "prevent the Government from making agreements with them by
which their labor may be more (or less) than eight hours a day." The act thus
failed of its apparent object. To cure this defect was passed the act of August 1, 1892,
chapter 352. Held, therefore, that the term "public works of the United States,"
used in the first section of the latter act, should not be narrowly construed. Dig.
Opin. J. A. G., par. 1235.
Thus held that the construction of levees on the banks of the Mississippi River,
in accordance wriththe plans of the Mississippi River Commission, wa« a public work
a And see XIX Opin. Att. Gen., 685.
MILITARY LAWS OF THE UNITED STATES. 593
1575. The provisions of this act shall not be so cons trued
as to in any manner apply to or affect contractors or sub- fegg?-3| ibid,
contractors, or to limit the hours of daily service of labor-
ers or mechanics engaged upon the public works of the
United States or of the District of Columbia for which
contracts have been entered into prior to the passage of
this act. Sec. 3, ibid.
1576. That hereafter any person or persons entering bond to
BONDS TO SECURE PAYMENT FOR LABOR AND MATERIALS.
\
Penal b
^curity
into a formal contract with the United States for the can-gggj**1*
struction of any public building, or the prosecution andv^2^| 1894)
completion of any public work, or for repairs upon any
of the United States in the sense of the act of August 1, 1892, chapter 352, section 1,
although the United States did not own the land. A proprietorship in or jurisdic-
tion over the thing constructed is not necessary. The United States expends annually
more than twenty millions for the improvement of rivers and harbors, but the greater
part of this is done without acquiring title or jurisdiction to or over the premises.
The question under the act is not in whom is the title or jurisdiction, but who is
doing the work. The construction of these levees is a particular work appropriated
for by Congress and to be contracted for by the United States. It is therefore one
of the public works of the United States/ and subject to the provisions of this
statute. (a) Ibid., par. 1236.
Held, that it was not essential that the requirement of the act of August 1, 1892,
be embodied in a contract, the law itself being self-acting. The responsibility rests on
contractors to comply with it, irrespective of the terms and conditions of their con-
tracts. The officers who enter into contracts on behalf of the United States are not
charged with the duty of enforcing the law with reference to those with whom they
contract, the latter being directly responsible in the matter. Any construction by
the War Department of the requirements of the act would, if erroneous and not
sustained by the courts, be no protection to contractors. Ibid., par. 1237.
Inquiry having been made of the War Department by certain contractors whether
the men employed on dredges, scows, and tugs on Lake Erie, under contracts with
the United States, were not to be regarded as excepted from the application of the
act of 1892, held that it was not the duty or province of this Department to deter-
mine such questions, but the same were for the courts to decide, on trials under the
second section of the act, of persons charged with violations of its provisions.
Neither this or other Department of the Government can lay down rules or make
constructions of the law for contractors which would effectually protect them were
they brought to trial, (b) Ibid., par. 1238.
No provision is contained in the act of 1892 for the suspension of its operation,
and the Secretary of War has no power to suspend it as to certain work or places of
work on the theory that an "emergency" exists as to the same. Nor can he lay
down in advance any general rule as to what would be such an emergency as would
relieve an officer or contractor from liability, or give him an immunity from prose-
cution. The question.of the existence of an emergency is to be determined, in the
first instance, by the person carrying on, or in charge of the work; in the second,
by the court, if the case come before one. It may be said generally that when the
emergency can be foreseen it is not extraordinary; that increased expense and incon-
venience can not constitute an emergency which can not be foreseen and guarded
against. Ibid., par. 1240.
a In the recent case of U. S. v. Jefferson, 60 Fed. Rep., 736, it is held that seamen employed on a
steam snag boat belonging to the War Department, engaged in removing obstructions to navigation,
were employed upon a "public work of the United States," and that the master of the boat, in exact-
ing from them more than eight hours labor per diem, was indictable under the act of August 1, 1892.
o In a communication to the Secretary of War of August 29, 1892, the Attorney-General, whose
opinion had been asked with regard to the application in general of the act to the "construction of
levees on the Mississippi River," declines to give an official opinion with a view to the guidance of
persons who may propose to enter in contract relations with the United States, in the absence of a
special case requiring the action of the Secretary. See XX Opin. Att, Gen., 459.
22924—08 38
594 MILITAKY LAWS OF THE UNITED STATES.
public building- or public work, shall be required before
commencing such work to execute the usual penal bond,
with good and sufficient sureties, with the additional obli-
gations that such contractor or contractors shall promptly
make payments to all persons supplying him or them labor
and materials in the prosecution of the work provided for
in such contract; and any person or persons making appli-
cation therefor, and furnishing affidavit to the Depart-
ment under the direction of which said work is being, or
has been, prosecuted that labor or materials for the prose-
cution of such work has been supplied by him or them,
and payment for which has not been made, shall be fur
nished with a certified copy of said contract and bond,
upon which said person or persons supplying such labor
Action on bond and materials shall have a right of action, and shall be
teriafsbfurrn£ned! authorized to bring suit in the name of the United States
for his or their use and benefit against said contractor and
sureties and to prosecute the same to final judgment and
execution : Provided, That such action and its prosecutions
shall involve the United States in no expense.1 Act of
August 13, 1894 (%$ Stat. L.,
1 When a contract is entered into for the construction of any public building, of
the prosecution and completion of any public work, or for repairs on any public
building or public work, the contractor wrill be required, before entering upon per-
formance of the same, to include in the bond given for the faithful performance of
the contract the further obligation that he will promptly make payments to all per-
sons who supply him with labor and materials for the prosecution of the work pro- ,
vided for in such contract. A certified copy of this contract and bond will be
furnished to any person who has supplied such labor or materials, upon his applica-
tion to the War Department, accompanied by an affidavit that the labor or materials
have been supplied by him and have not been paid for by the contractor. Par. 644,
A. R, 1901.
The act of August 13, 1894, which requires that the bond given to the United
States by any contractor on a Government work shall contain the additional obliga-
tion that such contractor will promptly make payments to all persons supplying him
with labor, materials, etc., does not establish any privity between the United States
and such persons so as to authorize the officers of the Government to satisfy such
claims from the moneys due the contractor on the failure of the latter to do so. 3
Compt. Dec., 708.
The act of August 13, 1894, giving to persons supplying labor and materials to a
contractor on a Government work the right to maintain a suit in the name of the
United States for their own benefit against the contractor and the sureties on his
bond, does not authorize payment of the amount due the contractor from the United
States to the sureties upon their claim that they will be held liable for certain
amounts due for labor and materials which the contractor had failed to pay. Ibid.
When a contract has been fully completed payment of the balance remaining due
from the United States to one of two copartners appearing as contractors in the name
of the partnership will be a valid acquittance of the United States whether the
other partner was ever legally bound as a party to the contract or not. Ibid.
When the Government, under the terms of a contract, takes possession of and
finishes the uncompleted portion of the work for less than the amount which would
have been payable to the contractor therefor, the latter is not entitled to the profit
thus accruing' to the Government. Ibid.
Where, in the erection of a public building, the United States reserves the right to
withhold a part of the money in case the contractor fails to pay claims for material
and labor, the contractor can not, by an assignment of moneys so withheld, give the
MILITARY LAWS OF THE UNITED STATES.
595
1577. Provided that in such case the court in which such security for
costs.
action is brought is authorized to require proper security sec.2,*wd.
for costs in case judgment is for the defendant. Sec. #,
ibid.
INSPECTION OF FUEL IN THE DISTRICT OF COLUMBIA.
Par.
Par.
1580. No payment without certificate.
1578. Appointment of inspectors.
1579. Certificates of appointment.
1578. It shall not be lawful for any officer or person in
the civil, military, or naval service of the United States in
the District of Columbia to purchase anthracite or bitumi- i.v.ie,p.229.
nous coal or wood for the public service except on condi-
tion that the same shall, before delivery, be inspected and
weighed or measured by some competent person to be Appointment
. T , , , , i . /. of inspectors, etc.
appointed by the head of the Department or chief of the Mar. 2, 1895, s.
branch of the service for which the purchase is made from 'sec.37ii,Ris.
among the persons authorized to be employed in such
Department or branch of the service: Provided, That the
weigher or measurer of the Navy Department may be
appointed outside of said Department, and that such
weigher and measurer shall give bond and be paid as here-
tofore provided by law. The person appointed under this
section shall ascertain that each ton of coal weighed by
him shall consist of two thousand two hundred and forty
assignee any standing to participate in the fund until all labor and material claims
have been paid. Greeneville Sav. Bank et al. v. Lawrence et al., 76 Fed. Rep., 545.
The act of August 13, 1894, 28 Stat. L., 278, for the protection of persons furnish-
ing material and labor for the construction of public works, and providing that, on
furnishing an affidavit to the department of the Government, any person may have
a copy of the bond and contract, upon which such person may bring suit, has refer-
ence only to the procuring of the copy of the contract and bond, and is not a pre-
requisite to the right to maintain an action. This requirement is for the purpose of
satisfying the Government official that the person has furnished labor or material
on the particular contract. Surety Co. v. U. S., 77 Illinois, App. 106.
The condition in the bond of a contractor with the United States for public work,
prescribed by the act of August 13, 1894, 28 Stat. L., 278, is intended to cover pay-
ments only for the visible material furnished for direct use and incorporation in the
work, and of wages to tho men whose services are directly employed in doing the
work; and an action against the sureties on such a bond can only be maintained,
under the statute, by one who has title to a claim for labor or materials so supplied.
A person furnishing board and lodging to laborers employed on the work does not
supply either labor or materials within the meaning of the statute. U. S. v. Kimp-
land, 93 Fed. Rep., 403.
The terms of this statute do not include the claim of a railroad for freight due on
materials which are loaded and unloaded by the contractor, such charges being
neither labor nor materials within the meaning and purpose of the act. U. 8. v.
Hyatt, 92 Fed. Rep., 442.
A government contractor for public work, who has given a bond conditioned that
he will fl make full payments to all persons supplying him with labor or materials,"
is not liable thereon for unpaid wages due from a subcontractor who has supplied
him with materials, when he paid such contractor in full therefor. U. S. v, Farley
et al.} 91 Fed. Rep., 474.
596 MILITARY LAWS OF THE UNITED STATES.
pounds, and that each cord of wood to be so measured shall
be of the standard measure of one hundred and twenty-
eight cubic feet. Each load or parcel of wood or coal
weighed and measured by him shall be accompanied by his
certificate of the number of tons or pounds of coal and
the number of cords or parts of cords of wood in each
load or parcel.1 Act of March 8, 1895 (28 Stat. Z., 808).
of^igSSc.8 1579- The Pr°Per accounting officer of the Treasury
accboeunetingHffii s^a^ be furnished with a copy of the appointment of each
cesec 2 ma inspector, weigher, and measurer appointed under the
Sec.37i2, B.S. preceding section. Sec. #, ibid.
for°f ue^etc8 1580> ^ 8ka^ not be lawfu^ f°r anJ accounting officer to
cafe°ut >certif*~ pass or allow to the credit of any disbursing officer in the
Se?37i8 B s District of Columbia any money paid by him for purchase
of anthracite or bituminous coal or for wood unless the
voucher therefor is accompanied by a certificate of the
proper inspector, weigher, and measurer that the quantity
paid for has been determined by such officer. Ibid.
1 For requirements of regulations in respect to open-market purchases see para-
graphs 645-649, A. R., 1901.
CHAPTER XXXIII.
THE PUBLIC LANDS— MILITARY RESERVATIONS— MILL
TARY POSTS.
Par.
1581-1583. The public lands.
1584-1592. Homesteads.
1593-1599. Acquisitions of land by the
United States.
1600-1601. Jurisdiction over reservations.
Par.
1602-1614. Protection of reservations.
1615-1619. Disposition of lands. Rights
of way.
1620. Leases of public property.
1621-1630. Military posts.
THE PUBLIC LANDS.1
Par.
Par.
1582. Lands not subject to entry.
1583. The same, military reservations.
Jln
jrar.
1581. Lands subject to preemption and
homestead entry.
1581. All lands belonging to the United States, to which
the Indian title has been or may hereafter be extinguished, 94
shall be subject to the right of preemption, under the con- c^sf^isl'p18!^
ditions, restrictions, and stipulations provided by law. Sfv.2^,1??5^,'
Apr. 21, 1876, c. 72, v. 19, p. 35, Shepley et al. v. Cowen et al., 91 U. S., 330. Sec.2257, R.S.'
1 Lands acquired by the United States for public uses, by purchase with the con-
sent of the legislatures of the States, or acquired by an exercise of the right of emi-
nent domain are not ' ' public lands, ' ' that term applying only to such lands as are
subject to sale or other disposition under general laws. Newhall v. Sanger, 92 U. S.,
761; V Opin. Att. Gen., 578. Power over such lands is vested in Congress by the
Constitution, without limitation, and is the foundation upon which the Territorial
governments rest. U. S. v. Gratiot, 14 Pet., 526. The power of Congress over the
public land and the effect of its grants can not be interferred with by State legislation.
Gibson v. Chouteau, 13 Wall., 92.
Congress has the sole power to declare the dignity and effect of titles emanating
from the United States, and the whole legislation of the Federal Government, in
reference to the public lands, declares the patent the superior and conclusive evidence
of legal title. Until its issuance the fee is in the Government; by the patent, it passes
to the grantee, and he is entitled to recover the possession in ejectment. Bagnell v.
Broderick, 13 Peters, 436, 450; Wilcoxv. Jackson, ibid., 498, 516; Langdon v. Sher-
wood, 124 U. S., 74, 83; Hussman v. Dunham, 165 U. S., 144; Carter v. Ruddy, 166
U. S., 493; Kirwan v. Murphy, 83 Fed. Rep., 275.
There is no way for titles to land to be divested out of the United States, except
in strict pursuance of some law of the United States, and, as no statute of limitations
runs against the United States, occupancy and possession 'alone, even for a great
length of time, can not ripen into title as against the United States. Drew v. Valen-
tine, 18 Fed. Rep., 712.
In the administration of the public lands the decisions of the Land Department
upon questions of fact are conclusive, and only questions of law can be reviewed by
the courts. Catholic Bishop of Nesqually v. U. S. 158 U. S., 155.
597
598 MILITARY LAWS OF THE UNITED STATES.
jeJfnto8pr°eeSmp- 1582- Tlle following classes of lands, unless otherwise
11 4, 1841, c. sPecia% provided for by law, shall not be subject to the
S,!^;1^*81 of preemption, to wit:
piack- First. Lands included in any reservationjjy any treaty,
josephsvetu.4s8; law? or proclamation of the President, for any purpose. l
Second. Lands included within the limits of any incor-
f a5pMc-Pora^e(^ town, or selected as the site of a city or town.
nr^'ad Third. Lands actually settled and occupied for purposes
parnyd I McLean °^ trade and business, and not for agriculture.
Fourth. Lands on which are situated any known salines
1583- The provisions of this chapter2 shall not apply to
ti(Ma're2C'i867 c notary or other reservations3 heretofore made by the
Feb V28lim'cn United States, nor to reservations for light-houses, custom-
7 or sucn other public purposes as the inter-
1 Under this head fall military and Indian reservations, the Yellowstone National
Park, and the forest reservations in California set apart by the President under the
authority conferred by section 24 of the act of March 3, 1891. See the chapter enti-
tled NATIONAL PARKS.
2 Chapter 8, Revised Statutes, relating to the reservation and survey of town sites
on the public lands. See also the chapter entitled NATIONAL PARKS.
> 3 MILITARY RESERVATIONS.
No specific statutory authority exists empowering the President to reserve public
lands; but the right to reserve such lands for public uses is recognized by the courts.
14 Dec. Int. Dep., 426, 607, 628; Wolsey v. Chapman, 101 U. S., 755, 768; Walcott^.
Des Moines Co., 5 Wall., 681. Such reservation may be effected by proclamation or
by Executive order. 13 Dec. Int. Dep., 426. For cases in which the specific author-
ity of law exists for the establishment of reservations, see the title Forest Reservations,
in the chapter entitled NATIONAL PARKS.
A military reservation, being simply territory of the United States withdrawn
from sale, preemption, (a) etc. (VII Opin. Att. Gen., 574, 757; 14 ibid., 775), the mere
fact of the establishing of such a reservation can not affect the power of the State or
Territorial authorities (according as it may be located in a State or Territory) to
aThe Constitution (Art. IV. sec. 3, f 2) has vested in Congress the exclusive power "to dispose of
and make all needful rules and regulations respecting the territory" (held in U. S. v. Gratiot (14
Peters, 537 ) to mean "lands ") "or other property belonging to the United States. " • As a consequence
perhaps of the indefiniteness of this grant (see 7 Opin. Att. Gen., 574) no general enactment providing
for the setting apart of land for military reservations has ever been made by Congress. In a few cases,
indeed, a special authority to establish a military reserve has been conferred upon the President by
statute, but the great majority of the military reservations heretofore located or now existing have
been made by the President without any sucn specific authority whatever. But though no general
authority has been directly given by Congress for the reserving of lands for military purposes, an
authority for the purpose has been deemed to exist, and this authority is found in the usage of the
executive department of the Government, as indirectly sanctioned by Congress in repeated preemp-
tion acts, acts relating to the survey of the public domain, appropriation acts, etc., in which lands
reserved for military purposes by the President have been in general terms excepted from sale,
exempted from entry, etc. , or special provision has been made for the cost of improvements to be
erected upon the same. In Grisar v. McDonald (6 Wallace, 381) the United States Supreme Court, by
Field, J., observes: "From an early period in the history of the Government it has been the practice
of the President to order, from time to time, as the exigencies of the public service required, parcels
of land belonging to the United States to be reserved from sale and set apart for public uses."
Further, " The authority of the President in this respect is recognized in numerous acts of Congress."
The court then cites several statutes as containing this recognition, including the preeemption acts
of May 29, 1830, and September 4, 1841, and adds: "The action of the President in making the
(military) reservations" (the title to which was at issue in the particular case) "was indirectly
approved by the legislation of Congress in appropriating moneys for the construction of fortifica-
tions and other public works upon them." And see XII Opin. Att. Gen., 381; XIV ibid., 182; XVII
ibid., 258; Wilcox v. Jackson, 13 Peters, 512; U. S. v. Hare, 4 Sawyer, 653; also U. S. v. R. R. Bridge
Co., 6 McLean, 517;
It is, moreover, to be noted that the provision of the act of 1841, referred to by the Supreme Court,
has been incorporated as a general enactment in the Revised Statutes in the chapter (chapter 4 of
title 32) on preemptions, section 2258 expressly excepting from the hinds of the United States, "sub-
ject to the rights of preemption," " lands included in any reservation by any treaty, law, or proclama-
tion of the President for any purpose." And see section 2393, specific'ally'excepting military reser-
vations from the operation of the laws authorizing the establishing of town sites.
The "proclamation" of the President reserving lands for military purposes is usually in the form
MILITARY LAWS OF THE UNITED STATES. 599
ests of the United States may require, whether held under
reservations through the Land Office by title derived from
the Crown of Spain or otherwise.
of exclusive jurisdiction over the land by the State to the United States, the ques-
tion whether the State authorities may still serve process within the reservation on
account of liabilities incurred or crimes committed outside of its limits will depend
upon the terms of the cession. Dig. Opin. J. A. Gen., par. 1699.
Land which has been set apart as a portion of an Indian reservation, under a
treaty, can not be occupied as a military reservation; nor can even a military post
be maintained thereon, in derogation of the terms of the treaty or against the con-
sent of the Interior Department, (c) Ibid., par. 1701.
Held that the right to the "free and open exploration and purchase" of mineral
lands, accorded to citizens, etc., by section 2319 Revised Statutes, could not authorize
an entry, for the purpose of prospecting for mines, upon a military reservation once
duly denned and established by the President, the mineral lands intended by the
statute being clearly such as are included within the "public lands" of the United
States. Ibid., par. 1703.
Mineral lands belonging to the public domain, which are reserved from sale under
section 2318 of the Revised Statutes, may be reserved for military or other purposes
by the President. Where such lands are included in a military reservation, they
are not open to exploration and purchase under section 2319 of the Revised Statutes.
It is otherwise where a right has once attached to mineral land, under the laws
relating thereto, in favor of the locator of a mining claim. Here the land, during
the existence of such right, is not subject to reservation by the President; and if it-
be subsequently reserved, the locator may nevertheless perfect his title. XVII
Opin. Att, Gen., 230.
When public land subject to homestead settlement has been duly entered under
the homestead law, it thenceforth ceases to be at the disposal of the Government so
long as the entry of the settler subsists. Hence it can not, while such entry stands,
beset apart by the President for a military reservation. Ibid., 160.
Where a part of the public domain has once been reserved by the President for
military or other public purposes, and subsequently the land so reserved becomes
unnecessary for such purposes, it can not be restored to the public domain without
authority from Congress. Ibid., 168; XVI ibid., 123.
The President's power in the matter of military reservations is limited to the setting
apart and declaring of the reservation; and, for the purpose of adding to and modify-
ing the boundaries of the original reserved tract, a reservation may be redeclared by
the Executive. But the President can not unreserve duly reserved land, either by
revoking the order of reservation or otherwise. After lands have once been reserved
for military purposes, the President, in the absence of authority from Congress, is not
empowered to withdraw or restore them. By the authority, indeed, of the act of
July 5, 1884, he may abandon a useless military reservation and turn the lands over
to the Interior Department for disposition and sale. But he can not rereserve lands
once turned over, they being no longer a part of the public domain, but lands in
regard to which Congress has expressed a different will. Dig. Opin. J. A. G., para-
graphs 1706, 1707.
Land Dec. Int. Dept., 30, 1702; 6 id., 18, 317; 13 id., 426,607,628; 8 Fed. Rep.,
883; 12 id., 449; 92 U. S. 733; 101 id., 768; 5 Wallace 681.
of a military general order, issued by the Secretary of War, whose act in this, as in other administra-
tive proceedings pertaining to the military administration, is in legal contemplation the act of the
President, whom he represents. But no head of a Department or executive official inferior to the
President can, of his own authority, make a reservation of public lands. The power is vested only in
Congress and the President. United States r. Hare, 4 Sawyer, 653, 669.
In this connection may be noted the ruling of Attorney-General Bates (X Opins., 359), in opposition
to that of Justice McLean, of the Supreme Court (in U. S. v. The Railroad Bridge Co., 6 McLean, 517),
but apparently concurred in by Attorney-General Williams (XIV Opins., 246), to the effect that where
a tract of land of the United States has once been legally reserved for military purposes the President
is cot empowered, in the absence of authority from Congress, to relinquish such reservation and
restore the land reserved to the general body of the public lands.
b As by section 1237, Revised Statutes, exempting enlisted men from arrest for certain debts, or by
the operation of the provisions of the fifty-ninth article of war as to the form to be observed in making
criminal arrests of military persons.
cBy Article VI, section 2, of the Constitution, "all treaties made under the authority of the United
States" are declared to be "the supreme law of the land;" and Indian reservations " have generally
been made through the exercise of the treaty-making power, and in fulfillment of treaty obligations.
XIV Opin. Att, Gen., 182. That land cannot be reserved or occupied for military purposes to th
prejudice of a title previously vested in an individual or a corporation, see, further, IX Opin., 339;
X.III ibid., 469.
600
MILITARY LAWS OF THE UNITED STATES.
HOMESTEADS.
Par.
1584. Who may enter.
1585. Procedure.
1586. Soldiers, homesteads.
1587. Deduction for military service.
1588. The same; smaller tracts.
1589. Widows and children.
Par.
1590. Service in Army, etc., equivalent
to residence.
1591. Entry by agent.
1592. Absence of settler in military serv-
ice.
1584. Every person who is the head of a family, or who
p ichas arrived at the age of twenty -one years, and is a citizen
of the United States, or who has tiled his declaration of
v.!1 P. intention to become such, as required by the natural iza-
39leb. 11, 1874, c. tion laws, shall be entitled to enter one quarter section or
Mar. 13^1874, c. a less quantit}^ of unappropriated public lands, upon
5,' §74, c. which such person may have filed a preemption claim, or
isTsjc. which may, at the time the application is made, be subject
. to preemption at one dollar and twenty -five cents per
il!pS42o5' 16> V' acre; or eighty acres or less of such unappropriated lands,
Ar^L15' c" at two dollars and fifty cents per acre, to be located in a
19, pC
*ec'2289'R's'
72v.9p.35.
127^19, p8405C' body, in conformity to the legal subdivisions of the public
And
Mode of pro-
lands, and after the same have been surveyed.
every person owning and residing on land may, under the
provisions of this section, enter other land lying contigu-
ous to his land, which shall not, with the land so already
owned and occupied, exceed in the aggregate one hun-
dred and sixty acres.1
1585. The person applying for the benefit of the pre-
May2o^i862,c. ceding section shall, upon application to the register of
2. the land office in which he is about to make such entry,
Mar 21., 1864, c. • .
38, s. 2, v. is, p. 36. make affidavit before the register or receiver that he is
June 21, 1866, c.
i27,s.2,v.i4,p.67. the head of a family, or is twenty-one years or more of
June 22, 1874, c. J ' / J
394, v. is, p. 192. ag-e. or has performed service in the Army or Navv of
Mar. 3, 1875, c. & ' J
ISMS, is, 16, v. is, the United States, and that such application is made for
sec. 2290, B.S. his exclusive use and benefit, and that his entry is made
for the purpose of actual settlement and cultivation, and
not either directly or indirectly for the use or benefit of
any other person; and upon filing such affidavit with the
register or receiver, on payment of five dollars when the
entry is of not more than eighty acres, and on payment
of ten dollars when the entry is for more that eighty
acres, he shall thereupon be permitted to enter the amount
of land specified.
1 For other statutes respecting the acquisition of lands under the homestead laws
see Title XXXII, chapters 5 to 11, inclusive, of the Revised Statutes.
MILITARY LAWS OF THE UKITED STATES. 601
1586. Every private soldier and officer who has served stf|Jlfcier'shome'
in the Army of the United States during the recent rebel- g^J^' 1901'v-
lion for ninety days, and who was honorably discharged Sec.2304,B.s.
and has remained loyal to the Government, including the
troops mustered into the service of the United States by
virtue of the third section of an act approved February
thirteenth, eighteen hundred and sixty-two, and every
seaman, marine, and officer who has served in the Navy
of the United States or in the Marine Corps during the
rebellion for ninety days, and who was honorably dis-
charged and has remained loyal to the Government, and
every private solder and officer who has served in the
Army of the United States during the Spanish war, or
who has served, is serving, or shall have served in the said
Army during the suppression of the insurrection in the
Philippines for ninety days, and who was or shall be
honorably discharged; and every seaman, marine, and
officer who has served in the Navy of the United States or
in the Marine Corps during the Spanish war, or who has
served, is serving, or shall have served in the said forces
during the suppression of the insurrection in the Philip-
pines for ninety days, and who T^as or shall be honorably
discharged, shall, on compliance with thie provisions of
this chapter, as hereinafter modified, be entitled to enter
upon and receive patents for a quantity of public lands
not exceeding one hundred and sixty acres, or one quarter
section, to be taken in compact form, according to legal
subdivisions, including the alternate reserved sections of
public lands along the line of any railroad or other public
work not otherwise reserved or appropriated, and other
lands subject to entry under the homestead laws of the
United States; but such homestead settler shall be allowed
six months after locating his homestead and filing his
declaratory statement within which to make his entry and
commence his settlement and improvement. Act of March
1, 1901(31 Stat. Z., 847).
1587. The time which the homestead settler has served mnietarCtservicer
in the Army, Navy, or Marine Corps shall be deducted 31Maig417> 1900t v>
from the time heretofore required to perfect title, or if ^ec. 2305,B.s.
discharged on account of wounds received or disability
incurred in the line of duty, then the term of enlistment
shall be deducted from the time heretofore required to
perfect title, without reference to the length of time he
may have served; but no patent shall issue to any home-
stead settler who has not resided upon, improved, and cu!
602 MILITARY LAWS OF THE UiaTED STATES.
tivated his homestead for a period of at least one year
after he shall have commenced his improvements: Pro-
vided, That in every case in which a settler on the public
land of the United States under the homestead laws died
while actually engaged in the Army, Navy, or Marine
Corps of the United States as private soldier, officer,
seaman, or marine, during the war with Spain or the Phil-
ippine insurrection, his widow, if unmarried, or in case
of her death or marriage, then his minor orphan children
or his or their legal representatives, may proceed forth-
with to make final proof upon the land so held by the de-
ceased soldier and settler, and that the death of such sol-
dier while so engaged in the service of the United States
shall, in the administration of the homestead laws, be con-
strued to be equivalent to a performance of all require-
ments as to residence and cultivation for the full period of
five years, and shall entitle his widow, if unmarried, or in
case of her death or marriage, then his minor orphan chil-
dren or his or their legal representatives, to make final
proof upon and receive Government patent for said land;
and that upon proof produced to the officers of the proper
local land ofiice by the widow, if unmarried, or in case of
her death or marriage, then his minor orphan children or
his or their legal representatives, that the applicant for
patent is the widow, if unmarried, or in case of her death
or marriage, his orphan children or his or their legal rep-
resentatives, and that such soldier, sailor, or marine died
while in the service of the United States as hereinbefore
described, the patent for such land shall issue. Ibid.
Persons who 1588. Every person entitled, under the provisions of
than eieor acres! section twenty -three hundred and four, to enter a home-
n june°8, 1872, c. stead who may have heretofore entered, under the home-
17> p' stead laws, a quantity of land less than one hundred and
' sixty acres, shall be permitted to enter so much land as,
when added to the quantity previously entered, shall not
exceed one hundred and sixty acres.
widow and mi- 1589. In case of the death1 of any person who would be
titled to a homestead under the provisions of section
etc. !a ' twenty-three hundred and four, his widow, if unmarried,
338,Us.e3%18i7,' p! or in case of her death or marriage, then his minor orphan
3?ec. 2807, B.S. children, by a guardian duly appointed and officially accred-
ited at the Department of the Interior, shall be entitled to
Section 6 of the act of March 2, 1889 (25 Stat. L., 855), provides that the require-
ments of that section shall not "be construed as affecting any rights to location of
soldiers' certificates heretofore issued under section 2306 of the Revised Statutes."
MILITARY LAWS OF THE UNITED STATES. 603
all the benefits enumerated in this chapter, subject to all
the provisions as to settlement and improvements therein
contained; but if such person died during his term of en-
listment, the whole term of his enlistment shall be deducted
from the time heretofore required to perfect the title.
1590. Where a party at the date of his entry of a tract
of land under the homestead laws, or subsequently thereto,
was actually enlisted and employed in the Army or Navy ^nne^ua, c.
of the United States, his services therein shall, in the ad- 3^ 2308,E.S.
ministration of such homestead laws, be construed to be
equivalent, to all intents and purposes, to a residence for
the same length of time upon the tract so entered. And
if his entry has been canceled by reason of his absence
from such tract while in the military or naval service of
the United States, arid such tract has not been disposed of,
his entry shall be restored; but if such tract has been dis-
posed of, the party may enter another tract subject to
entry under the homestead laws, and his right to a patent
therefor may be determined by the proofs touching his
residence and cultivation of the first tract and his absence
therefrom in such service.
1591. Every soldier, sailor, marine, officer, or other b who may enter
person coming within the provisions of section twenty- 33gune58)v18i7' c'
three hundred and four, may, as well by an agent as
person, enter upon such homestead by filing a declaratory
statement, as in preemption cases; but such claimant in
person shall within the time prescribed make his actual
entry, commence settlements and improvements on the
same, and thereafter fulfill all the requirements of law.
1592. In every case in which a settler on the public land Absence of set-
J tier enlisted as
of the United States under the homestead laws enlists or soldier, etc., to
be equivalent to
is actually engaged in the Army, Navy, or Marine Corps residence,
of the United States as private soldier, officer, seaman, 01'30^ 427|54 K s
marine, during the existing war with Spain, or during any
other war in which the United States may be engaged, his
services therein shall, in the administration of the home-
stead laws, be construed to be equivalent to all intents and
purposes to residence and cultivation for the same length
of time upon the tract entered or settled upon; and here-
after no contest shall be initiated on the ground of aban-
donment, nor allegation of abandonment sustained against
any such settler, unless it shall be alleged in the prelimi-
nary affidavit or affidavits of contest, and proved at the
hearing in cases hereafter initiated, that the settler's
alleged absence from the laud was not due to his employ-
604 MILITARY LAWS OF THE UNITED STATES.
Discharge formenfc m suc^ service: Provided, That if such settler shall
disability. ^ discharged on account of wounds received or disability
incurred in the line of duty, then the term of his enlist-
ment shall be deducted from the required length of resi-
dence without reference to the time of actual service:
Provided further , That no patent shall issue to any home-
stead settler who has not resided upon, improved, and
cultivated his homestead for a period of at least one year
after he shall have commenced his improvements. Act
of June 16, 1898 (30 Stat. L., 473).
ACQUISITION OF LANDS BY THE UNITED STATES.
Par. j Par.
1593. Examination of titles. I 1597. Acquisition by condemnation.
1594. Purchases to be authorized by law.
1595. Assent of States.
1598. The same.
1599. The same; sites for fortifications.
1596. Releases.
1593. No public money shall be expended upon any site
states. Unitedor land purchased by the United States for the purpose of
Res6 NO. G^1!^'. erecting thereon any armory, arsenal, fort, fortification,
4^«c. 355, K. s. navy -yard, custom-house, light-house, or other public
building, of any kind whatever, until the written opinion
of the Attorney-General shall be had in favor of the
validity of the title, nor until the consent of the legisla-
ture of the State in which the land or site may be, to such
purchase, has been given. The district attorneys of the
United States, upon the application of the Attorney-Gen-
eral, shall furnish any assistance or information in their
power in relation to the titles of the public property lying
within their respective districts. And the Secretaries of
the Departments, upon the application of the Attorney-
General, shall procure any additional evidence of title
which he may deem necessary, and which may not be in
the possession of the officers of the Government, and the
expense of procuring it shall be paid out of the appropria-
tions made for the contingencies of the Departments
respectively.1
1 See chapters entitled THE DEPARTMENT OF JUSTICE, CONTRACTS AND PURCHASES,
THE ENGINEER CORPS, NATIONAL PARKS, and NATIONAL CEMETERIES for additional
provisions respecting the acquisition of lands. " When, in an act appropriating for
the purchase of additional land for a public building, the piece of ground to be pur-
chased is particularly described, the appropriation can not be used for the purchase
of another tract equally suitable for the purpose, and at a price within the sum pro-
vided, although the piece named can not be secured within the amount appropri-
ated." 2 Compt. Dec., 77. See also section 1136, Revised Statutes (par. 1216, post),
for provision requiring all officers of the United States having title papers of prop-
MILITARY LAWS OF THE UNITED STATES. 605
1594. No land shall be purchased on account of p
United States, except under a law authorizing such pur- lanjday l 1820 c
'
52, s. 7, v.s, p. 568
Sec.3736, R.S.
erty, purchased or about to be purchased, in their possession to furnish the same
forthwith to the Attorney-General.
Joint resolution No. 21, of April 11, 1898 (30 Stat. L., 737), contains the require-
ment that ' ' in case of emergency, when, in the opinion of the President, the immediate
erection of any temporary fort or fortification is deemed important and urgent, such
temporary fort or fortification may be constructed upon the written consent of the owner
of the land upon which such work is to be placed; and the requirements of section
three hundred and fifty-five of the Revised Statute? shall not be applicable in such
cases. ' '
The expense of procuring an abstract of title to land to be used as a site for a
fortification is a proper charge against the appropriation made for the purchase of
the site, if the abstract is needed by the United States attorney to assist him in
examining the title, provided the land is to be purchased and not condemned. Ill
Compt. Dig., 216.
The title to lands purchased on account of the United States is not properly
assured by a certificate of "no liens," signed by the attorney who made the abstract
of title. The proper person to make such a certificate is the custodian of the records
of judgments and other record liens in the county in which the land is located, (a)
Dig. Opin. J. A. Gen., par. 2114:
"Section 355 of the Revised Statutes prescribes that no public money shall be
expended upon any site or land purchased by the United States for the purpose of
erecting thereon any armory, arsenal, fort, fortification, navy-yard, custom-house,
light-house, or other building, of any kind whatever, until the * • * consent of
the legislature of the State in which the land or site may be, to such purchase, has
been given. This section is part based on the clause of the Constitution referred to,
and in part not. The consent of the State to a purchase, given in order to satisfy
the requirement of this section, would invest the United States with exclusive juris-
diction, if the purchase be for one of the constitutional purposes; but the section
provides for other purposes also, and as to these it would seem that a simple consent
to the purchase (assuming that such consent, being for a purpose not falling under
the clause of the Constitution, amounts to a cession of jurisdiction) would only carry
with it so much jurisdiction as would be necessary for the purpose of the purchase.
Probably this would be held to be concurrent jurisdiction. Taking into consideration
the fact that States can not, under any circumstances, interfere with the instrumen-
talities of the Government of the United States, it may, indeed, be questioned whether,
even under this view, unnecessary precautions have not been taken in regard to the
acquisition of jurisdiction; and certainly it can not be presumed that a State intends
to part with more of its sovereignty than is necessary. A consent to the purchase,
under section 355, Revised Statutes, if the purchase be for other than one of the
purposes described in the clause of the Constitution, may, therefore, be accompanied
with any limitations not interfering with an instrumentality of the Government of
the United States.
"The most common way of acquiring jurisdiction, however, is by the State's
expressly ceding it to the United States. In such case the State may make similar
limitations, and this even if the place be used by the United States for one of the
purposes mentioned in the clause of the Constitution. To bring the case under the
clause there must be a purchase with consent. Fort Leaven worth R. R. Co. v. Lowe,
1 14 U. S., 539 ; Chicago and Pacific Ry. Co. v. McGlinn, 114 U. S., 549 ; Benson v. U. S.,
146 U.S., 331; in re Kelly, 71 Fed. Rep., 545; in re Ladd, 74 Fed. Rep., 399.)"
Gen. G. N. Lieber, Sept. 28, 1897 (see Military Res., etc., Title and Jurisdiction,
p. 288).
1 In the absence of statutory authority, land can not be purchased for the United
States with any more legality than land of the United States can be sold or disposed
of. By a provision of an act of May 1, 1820, now contained in section 2736, Revised
Statutes, it is declared that "No land shall be purchased on account of the United
States except under a law authorizing such purchase." Held that the term "pur-
chase" was to be understood in its legal sense, as embracing any mode of acquiring
property other than by descent; (ft) and that therefrom the Secretary of War would
« Sec i;. o. 47 of 1881 for Attorney-General's regulations as to making deeds, proving title to lands,
etc.
6 See .Vil Opin. Att. Gen., 114, 121; Ex parte Hebard, 4 Dillon, 384.
606 MILITARY LAWS OF THE UNITED STATES.
statls8 e to1 pur- 1595- The President of the United States is authorized
chAper!°28,ani828, to procure the assent of the legislature of any State within
o4i, s. 2, v. 4, p. whicn any purchase of land has been made for the erection
Stc. i838,B.s. Of forts? magazines, arsenals, dockyards, and other needful
buildings without such consent having been obtained.1
not be empowered to accept a gift of land or interest in land for any use or purpose
independently of statutory authority, (a) And similarly held as to the construction
of the same word ("purchase") as employed in section 355, Revised Statutes, and
advised that an appropriation of public money could not legally be expended for the
erection of a public building upon land donated to the United States until the
Attorney-General had passed the title and the legislature of the State in which
the land was situated had given its consent to the grant, (b) Dig. Opin. J. A. Gen.,
627, par. '5.
The statutory authority relied upon for the purchase of land by a head of a Depart-
ment should be clear and indisputable. Thus, held that authority to purchase
additional land for the interment of soldiers could not be derived from the general
provision of the annual appropriation act, appropriating a certain sum for maintain-
ing the existing national cemeteries. Dig. Opin. J. A. Gen., par. 2105.
A statute conferring a specific authority to purchase certain land should, in the
exercise of the authority, be strictly construed. Thus, where a statute authorized
the Secretary of War to purchase, for a certain stated sum, a certain described tract
containing a specified number of acres, held that the act did not invest him with
discretion to purchase a portion only of such tract. Ibid., par. 2108.
Authority to acquire land in a State, by the exercise of the right of eminent
domain, whether by proceedings for condemnation in the United States circuit court
or in the courts of the State, (c) can be vested in an executive official of the United
States only by express legislation of Congress. Ibid., 2109.
The Constitution vests in Congress the exclusive power to dispose of the property
of the United States, real or personal. (<f) The Secretary of War, in the absence of
authority from Congress, can not alienate land of the United States. Thus, where
a company proposed to cut out and remove a part of a dam (some 140 feet) on Fox
River, Wisconsin, belonging to the United States, and to substitute another, as a
private improvement, below, held that this was a proposition for the alienation by an
executive official of public property, and could not legally be entertained. Ibid.,
par. 2113.
In view of the prohibition of section 3736, Revised Statutes, that "no land shall be
purchased on account of the United States, except under a law authorizing the same, ' '
the Secretary of War can not accept a grant by gift of land or of an easement in land
without authority of special statute. [By act of April 24, 1888, he is expressly
empowered to purchase, sr accept donations of, land for river and harbor improve-
ments.] And held that, in the absence of authority from Congress, a purchase of lots
in a city cemetery, for the burial purposes of a neighboring military post, would not
be legal or operative. Ibid. , par. 2106.
1 The State of North Carolina ceded to the United States, by an act of its legisla-
ture of 1794, the land of the present military reservation at Southport, N. C., the
site of old Fort Johnson. A condition of the deed of cession was to the effect that
a fortification should be erected on the land within three years and be maintained
forever thereafter for the public service, or the land should revert to the State. The
time allowed was repeatedly extended, the last extension expiring in 1818, when a
fortification had been constructed if not fully completed. The fort has long since
ceased to be garrisoned. In 1889 an individual citizen " entered " the site as State
a See this opinion concurred in by an opinion of the Attorney-General, in XVI Opins , 414. As
statutes specially authorizing the acceptance of donations of land, note the early acts of March 20
and May 9, 1794, and, later, the acts of February 18, 1867; March 3, 1875; June 23, 1879. That authority,
however, to purchase, and, a fortiori perhaps, to accept a gift of , the necessary land, may be implied
from an appropriation act granting a sum of money for a public work requiring for its construction
the occupation and use of certain land of an individual or corporation. See opinions of the Attorney-
General in XV Opins., 212; XVI ibid., 119, 387. In the opinion in XVI Opins., 119. it was held tnat where
no statutory authority whatever existed for accepting a gift of land a head of a Department would
not be justified in accepting the same on the condition that Congress ratify the acceptance and in
anticipation of such ratification.
6 But under the implied authority contained in section 1838, Revised Statutes, lands required as
cSee Kohl v. U. S., 1 Otto, 367.
eZXVI Opin. Att. Gen., 477.
MILITAEY LAWS OF THE UNITED STATES. 607
1596. Whenever any lands have been or shall be con- ^^^8. ob~
veyed to individuals or officers, for the use or benefit o^^^JVftii
the United States, the President is authorized to obtain sec. 3752,k.s.
from such person a release of his interest to the United
States.
1597. In every case in which the Secretary of the Treas- Acquisitions of
J lands for public
ury or any other officer of the Government has been, or usesby condem-
hereafter shall be, authorized to procure real estate for
the erection of a public building or for other public uses he
shall be, and hereby is, authorized to acquire the same for
the United States by condemnation, under judicial process,
whenever in his opinion it is necessary or advantageous to
the Government to do so, and the United States circuit or
district courts of the district wherein such real estate is
located shall have jurisdiction of proceedings for such jurisdiction to
condemnation, and it shall be the duty of the Attorney- courts.
General of the United States, upon every application of the
Secretary of the Treasury, under this act, or such other
officer, to cause proceedings to be commenced for condem-
nation, within thirty days from the receipt of the applica-
tion at the Department of Justice.1 Act of August 1, 1888
(26 Stat. L.,35T).
land. Held that this act was without legal authority or effect; that the condition
subsequent in the deed was one of the breach of which the grantor, the State, could
alone take advantage; and that, as the State had not proceeded to reenter for such
breach, the United States was not ousted and could legally continue to hold the
premises, (a) Ibid., par. 2116.
^The power to take private property for public uses, generally termed the right of
eminent domain, belongs to every independent government. It is an incident of
sovereignty and requires no constitutional recognition. The provision found in the
fifth amendment to the Federal Constitution, and in the constitutions of the several
States, for just compensation for property taken, is merely a limitation upon the use
of the power. It is no part of the power itself, but a condition upon which the power
may be exercised. U. S. v. Jones, 109 U. S., 513, 518; Boom Co. v. Patterson, 98 U. S.,
106; Kohl v. U. S., 91 U. S., 367; Cooley Con. Lim., 526; U. S. v. Oregon Kailway. and
Nay. Co., 16 F. R., 524. In some instances the States, by virtue of their own right of
eminent domain, have condemned lands for the use of the General Government, and
such condemnations have been sustained by their courts, without, however, denying
the right of the United States to act independently of the States. Kohl v. U. S., 91
U. S., 367, 373; Gilmer v. Lime Point, 18 Cal., 729; Burt. v. Merchants' Ins. Co., 106
Mass., 356; U. S. v. Jones, 109 U. S., 513. The estate acquired by such exercise of
the right of eminent domain on the part of the United States may be a fee simple or
may be in the nature of an easement. XVI Op. Att. Gen. , 387. The legislature is the
judge of the necessity for exercising the right in any case. Cooley Const. Law, 527.
It is now well settled that whenever, in the execution of the powers granted to the
United States by the Constitution, lands in any State are needed by the United States,
for a fort, magazine, dockyard, light-house, custom-house, post-office, or any other
public purpose, and can not be acquired by agreement with the owners, the Congress
of the United States, exercising the right of eminent domain, and making just com-
pensation to the owners, may authorize such lands to be taken, either by proceedings
in the courts of the State with its consent, or by proceedings in the courts of the
United States, with or without any consent or concurrent act of the State, as Congress
may direct or permit. Chappell v. U. S., 160 U. S., 499, 509, and 510. Citing Harris
v. Elliott, 10 Pet., 25; Kohl v. U. S., 91 U. S., 367; U. S. v. Jones, 109 U. S., 513; Fort
a See Schulenberg v. Harriman, 21 Wall., 44.
608 MILITARY LAWS OF THE UNITED STATES.
1 " 1598. The practice, pleadings, forms, and modes of pro-
sec. 2, -ibid, ceeding in causes arising under the provisions of this act
shall conform, as near as may be, to the practice, pleadings,
forms, and proceedings existing at the time in like causes
in the courts of record of the State within which such cir-
cuit or district courts are held, any rule of the court to the
contrary notwithstanding. Sec. #, ibid.
ca«on9sforf°rtifl" 1599. Hereafter the Secretary of War may cause pro-
26Ap.g3i6.'1890'v' ceedings to be instituted, in the name of the United States,
in any court having jurisdiction of such proceedings, for
the acquirement, by condemnation, of any land, or right
pertaining thereto, needed for the site, location, construc-
tion, or prosecution of works for fortifications and coast
defenses, such proceedings to be prosecuted in accordance
with the laws relating to suits for the condemnation of
property of the States wherein the proceedings ma}^ be in-
stituted: Provided, That when the owner of such land, or
rights pertaining thereto, shall fix a price for the same,
which, in the opinion of the Secretary of War, shall be
reasonable, he may purchase the same at such price with-
out further delay: Provided further, That the Secretary of
War is hereby authorized to accept on behalf of the United
States donations of lands, or rights pertaining thereto, re-
quired for the above-mentioned purposes : And provided
further, That nothing herein contained shall be construed
to authorize an expenditure, or to involve the Government
in any contract or contracts for the future payment of
money, in excess of the sums appropriated therefor.1 Act
of August 18, 1890 (26 Stat. L., 316).
Leavenworth R. R. r. Lowe, 114 U. S., 525, 531, 532; Cherokee Nation r. Kansas Rwy.,
135 U. S., 641, 656; Monongahela Navigation Co. v. U. S., 148 U. S., 312; Lu^ton v.
North River Bridge Co., 147 U. S., 337, and 153 U. S., 525; Burt v. Merchants' Ins.
Co., 106 Mass., 356; U. S., petitioners, 96 N. Y., 227.
1 The manner in which the power of eminent domain of the United States shall be
exercised is a matter of legislative discretion, and Congress, by the act of August 1,
1888, 25 Stat. L., 357, has vested in the United States circuit and district courts of the
district in which the land is situated jurisdiction of proceedings authorized to be
instituted by any public officer to condemn such land for public purposes. By the
act of August 18, 1890 (26 Stat. L., 316), the Secretary of War is authorized to cause
proceedings to be instituted for the condemnation of land for military purposes "in
any court having jurisdiction of such proceedings." Held, that said acts are in pari
materia, and upon an application by the Secretary of War under the latter act the
Attorney-General may, at his election, cause proceedings to be instituted for the con-
demnation of land for military purposes in either the State or Federal courts.
Chappell v. U. S., 81 Fed. Rep.. 764. By the Constitution of the United States, the
estimate of the just compensation for property taken for the public use, under the
right of eminent domain, is not required to be made by a jury, but may be intrusted
to commissioners appointed by a court or by the Executive, or to an inquest consist-
ing of more or fewer men than an ordinary jury. Bauman ?'. Ross, 167 U. S., 548.
Under the authority conferred by this statute the Attorney-General may, upon the
request of the Secretary of War, cause proceedings to be instituted for the condem-
nation of land for military purposes in either the State or Federal courts. Chappell
v. U. S., 81 Fed. Rep., 764.
MILITARY LAWS OF THE UNITED STATES. 609
JURISDICTION OVER RESERVATIONS.1
1600. The Congress shall have Power * * *
To exercise exclusive Legislation in all Cases whatsoever
over such district (not exceeding ten Miles square) as may, CotrstitutionC" 8>
by Cession of particular States, and the Acceptance of Con-
1 Lands may be acquired-by the United States, within the territory of a State, in
any one of three ways: (1) By purchase without the consent of the legislature of the
State within which the lands are situated; (2) by purchase with such consent; (3) by
an exercise of the right of eminent domain. Kohl v. U. S., 91 U. S., 367.
When the United States acquire lands within the limits of a State, with the con-
sent of the legislature of the State, for the erection of forts, arsenals, dockyards,
and other needful buildings, the Constitution confers upon them exclusive jurisdic-
tion of the tract so acquired; but when they acquire such lands in any other way
than by purchase with the consent of the legislature they will hold the^ lands sub-
ject to this qualification, that if upon them forts, arsenals, or other public buildings
are erected for the uses of the General Government such buildings, with their
appurtenances, as instrumentalities for the execution of its powers, will be free from
any such interference and jurisdiction of the State as would destroy or impair their
effective use for the purposes designed. Such is the law with reference to all instru-
mentalities created by the General Government. Their exemption from State con-
trol is essential to the independence and sovereign authority of the United States
within the sphere of their delegated powers. But when not used as such instru-
mentalities the legislative power of the State will be as full and complete as over
any other places within her limits. Fort Leavenworth R. R. Co. v. Lowe, 114 U. S.,
525, 539. Where the absolute title to property remains in the United States, no
matter for what purpose it is acquired or held, it is not subject to State or municipal
taxation. Am. and Engl. Ency. of Law, vol. 25, p. 110, and cases cited.
The purchase of lands in a State by the General Government, with legislative con-
sent, does not, ipso facto, confer upon'the General Government exclusive jurisdiction,
unless the purchase is for a fort or for some other purpose distinctly named in Article
I, section 8, of the Constitution ; and in order that exclusive jurisdiction may be acquired
over land taken for any other purpose the act providing therefor and calling for the
consent must unequivocally declare that exclusive jurisdiction is intended and neces-
sary, or such necessity must be manifest from the purpose of the act. Accordingly,
held, that the acts of Congress establishing the National Home for Disabled Volunteer
Soldiers and creating a corporation authorized to take and hold lands for the purpose
of such homes, containing no declaration of the necessity of exclusive jurisdiction in
the General Government over such lands, do not vest such exclusive jurisdiction in
the United States, upon the consent of the State being given to the acquisition of such
lands. In re Kelly, 71 Fed. Rep., 545.
A cession to the General Government, in the act giving the consent of the State
to the purchase of such land, of " jurisdiction" does not confer exclusive jurisdiction
the purpose of the act not requiring it, but such jurisdiction only, concurrent with
that of the State, as Congress may find necessary for the objects of the cession. Ibid.
Upon lands so ceded for the purpose of a home for disabled volunteers the criminal
laws of the United States, which apply only to places within their exclusive juris-
diction, are not operative. Ibid.
A State may cede to the United States exclusive jurisdiction over a tract within its
limits in a manner not provided for in the Constitution of the United States, and
may prescribe conditions to the cession, if they are not inconsistent with the effective
use of the property for the purpose intended. The reservation which has usually
accompanied the consent of the States, that civil and criminal process of the State
courts may be served in the places purchased, is not considered as interfering in any
respect with the supremacy of the United States over them, but is admitted to prevent
them from becoming an asylum for fugitives from justice. Fort Leavenworth R. R.
Co. v. Lowe, 114 U. S., 525, 533. Such reservations provide only that civil and criminal
process issued under the authority of the State, which must, of course, be for acts done
and cognizable by the State, may be executed within the ceded lands, notwithstanding
the cession. Not a word is said from which we can infer that it was intended that
the State should have a right to punish for acts done within the ceded lands. Ibid.,
534; United States v. Cornell, 2 Mason, 60; Commonwealth v. Clary, 8 Mass., 72;
Mitchell v. Tibbetts, 17 Pick., 298; People v. Godfrey, 17 Johns (N. Y.), 225.
Residents within such ceded districts have none of the duties and obligations and
22924—08 - 39
610 MILITARY LAWS OF THE UNITED STATES.
gress, become the Seat of the Government of the United
States, and to exercise like Authority over -all places pur-
chased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Maga-
zines, Arsenals, dock- Yards, and other needful Buildings.
Article I, section 8, Constitution of the United States.
none of the rights and privileges of citizens of the States within which such lands are
situated. They are not subject to taxation; they can not exercise the right of suffrage.
VI Opin. Att. Gen., 577; X ibid., 35; Sinks v. Reese, 19 Ohio, 306. They arc not
entitled to the benefit of the public schools. 1 Met. (Mass. ), 580.
An act of the legislature of a State ceding to the United States the jurisdiction of
the State over a tract of land used as a military reservation upon condition that such
jurisdiction shall continue only so long as the United States shall own and occupy
such reservation; that the State shall have the right within the reservation to serve
civil process and to execute criminal process against persons charged with crime
committed within the State, and that roads may be opened and kept in repair within
such reservation, cedes to the United States the entire political jurisdiction of the
State over the place in question, including judicial and legislative jurisdiction, except
as to service of process and opening roads, and the same can not be affected or further
limited without the consent of the United States by a subsequent act of the State
legislature attempting to impose additional restrictions on the jurisdiction ceded. In
re Ladd, 74 Fed. pep., 31.
After such cession a justice of the peace acting under authority of the State has
no jurisdiction over the ceded territory in matters ot alleged criminal violation of the
laws of the State committed on such territory. Ibid.
It is a general rule of public law, recognized and acted upon by the United States,
that whenever political jurisdiction and legislative power over any territory are
transferred from one nation or sovereign to another the municipal laws of the coun-
try— that is, laws which are intended for the protection of private rights — continue
in force until abrogated or changed by the new government or sovereign. By the
cession public property passes from one government to the other, but private prop-
erty remains as before, and with it those municipal laws which are designed to secure
its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and
regulations in conflict with the political character, institutions, and constitution of
the new government are at once displaced. * * . * But with respect to other laws
affecting the possession, use, and transfer of property, and designed to secure good
order and peace in the community and promote its health and prosperity, which are
of a strictly municipal character, the rule is general that a change of government leaves
them in force until by direct action of the new government they are altered or
repealed. Chicago and Pacific R. R. v. McGlinn, 114 U. S., 542, 547; American Insur-
ance Co. v. Cantor, 1 Pet., 542; Halleck Int. Law, ch. 34, sec. 14.
While after such cession the municipal laws of the State governing property and
property rights continue in force in the ceded territory, except so far as in conflict
with the laws and regulations of the United States applying thereto, the criminal
laws of the State cease to be of force within the ceded territory, and laws regulating
the sale of intoxicating liquors, requiring a license therefor, and punishing unlicensed
sales cease to be operative, both as in conflict with the regulations of the United
States governing military reservations and as penal in character. In re Ladd, 74
Fed. Rep., 31.
Such cessions are ' ' necessarily temporary, to be exercised only so long as the places
continue to be used for the public purposes for which the property was acquired, or
reserved from sale." When they cease to be so used, the jurisdiction reverts to the
State. Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525, 542.
A lease by the United States to a city for market purposes of vacant land which
was a part of land ceded by the State to the United States for the purposes of a navy-
yard and naval hospital, with a provision that the United States may retain such
use and jurisdiction no longer than the premises are used for such purposes, operates,
at least while the lease is in force, to suspend the exclusive authority and jurisdiction
of the United States over the leased land, and thereby makes it subject to the juris-
diction of State courts in an action for ouster therefrom. Palmer v. Barrett, 162
U. S., 399. The character and purposes of the occupation of a reservation having
been officially and legally established by that branch of the Government which has
control over such matters, it is not open to the courts, on a question of jurisdiction,
MILITARY LAWS OF THE UNITED STATES. 611
JURISDICTION OVER OFFENSES COMMITTED ON RESERVATIONS.
1601. When any ofl'ense is committed in any place, juris-
diction over which has been retained by the United States
or ceded to it by a State, or which has been purchased with
to inquire what may be the actual uses to which any portion of the reserve is tem-
porarily put. Benson r. U. S., 146 U. S., 331.
Over lands reserved for military or other governmental purposes in the Territories
the jurisdiction of the United States is necessarily paramount. Wh^n a Territory
is admitted as a State it is within the power of Congress to stipulate for the power
of exclusive jurisdiction over such reservations, or to except them from the jurisdic-
tion of the State. Failing to do this, however, the State can exercise such authority
and jurisdiction over them as over similar property held by private individuals; and
the United States can acquire exclusive jurisdiction only when the same has been
formally ceded by the legislature of the State in which the lands are situated. Fort
Leaven worth R. R. Co. r. Lowe, 114 U. S., 525. Lands acquired by the United States
for public uses, by purchase with the consent of the States, or by an exercise of the
right of eminent domain, are not public lands, that term applying only to "such
lands as are subject to sale or other disposition under general laws. ' ' Newhall v. San-
ger, 92 U. S., 761.
When an act admitting a State into the Union, or organizing a Territorial govern-
ment, provides that the lands in possession of an Indian tribe shall not be a part of
such State or Territory, the new government has no jurisdiction over them. Lang-
ford r. Monteith, 102 U. S., 145. For an example of such a reservation on the part
of Congress in the admission of a State into the Union, see the act of July 10, 1890
(26 Stat. L., 222), admitting the State of Wyoming.
SUPERVISION OF RESERVATIONS.
Department commanders will supervise all military reservations within the limits
of their commands, and if necessary will use force to remove trespassers. No license
or permission to any civilian to use or occupy any part of a reservation will be given,
except by the Secretary of War, unless he be in the employ of the Government, or
in the family or service of persons there employed, (a) Par. 228, A. R., 1901.
The general principle of the authority to remove trespassers, their structures, and
property from the land of the United States embraced in a military reservation, held
specially applicable where the intrusion was for an injurious purpose, as where the
object was to lay a sewer intended to discharge into a main sewer constructed by the
United States upon and for the use of its own premises. In this instance, as the
trespass was committed by the authorities of a municipality, advised that reasonable
notice be given them to remove their property before resorting to military force for
the purpose, and meantime that precautions be taken to prevent a connection between
the proposed sewer and the sewers under the control of the United States. Dig.
Opin. J. A. G., par. 1717.
Intruding settlers on the public lands may be removed by military force under the
act of March 3, 1807 (2 Stat. L., 445). The United States have, also, all the common
law and chancery remedies of individuals, under similar circumstances, for protection
and redress. I Opin. Att, Gen., 471. The President may employ such military force
as he may judge necessary and proper to remove persons who may intrude upon any
lands ceded to the United States by any treaty made with a foreign nation, or by a
cession from any individual State, and may adopt that method with respect to the
lands ceded to the United States by the Creek treaty of March 4, 1832. II ibid., 575;
I ! 1 ibid., 255; VII ibid., 534.
Squatters and other trespassers and intruders may and should be expelled, by
military force if necessary, from a military reservation. (6) But such persons, when
they have been suffered to own and occupy buildings on a reservation, should be
allowed reasonable time to remove them. If not removed after due notice, the same
should be removed by the military. Material abandoned on a reservation by a tres-
passer, on vacating, may lawfully be utilized by the commander for completing roads,
walks, etc. Squatters on United States reservations may be forced therefrom by
criminal proceedings had under section 5388, Revised Statutes, or ejected by civil
action, (a) Dig. Opin. J. A. G., par. 1713.
Where squatters have mac\e any considerable improvements upon a reservation,
<i As to the authority to remove trespassers from military reservations, see III Opin. Att. Gen., 268;
XlX ibid., 106, 476; G. O. 74, Hdqrs. of Army, 1869. That this authority is not deemed to be affected
by the provision of section 15 of the act of June 18, 1878, see chapter entitled EMPLOYMENT OF MIL-
ITARY FORCE. See, also, Dig. J. A. G., par. 487; ibid. 165, par. 9.
&See,G. O. 62 of 1869.
612 MILITARY LAWS OF THE UNITED STATES.
the consent of a State for the erection of a fort, magazine,
arsenal, dockyard, or other needful building or structure,
the punishment for which offense is not provided for by
any law of the United States, the person committing such
offense shall, upon conviction in a circuit or district court
of the United States for the district in which the offense
and their value has been duly estimated — as by a board constituted by the depart-
ment commander and presenting in its report all the evidence on the subject — an
award by the Secretary of War, acquiesced in by the claimant, may be sued upon in
the Court of Claims, which (in the absence of evidence of fraud or mistake) will
accept such award as conclusive, (a) Ibid., par. 1714.
The cutting of timber on a military reservation is an offense against the United
States made punishable by section 5388, Revised Statutes, as amended by the acts of
June 4, 1888, and of March 3, 1875, chapter 151. So, grass cut on a reservation and
removed as hay would be personal property of which the asportation would be lar-
ceny under the act of March 3, 1875, chapter 144. And persons coming upon a mili-
tary reservation for the purpose of cutting wood or grass, or to plo'w up the soil, or
commit other trespass, may be removed as intruders, and the post commander should
not hesitate to resort to military force if necessary for the purpose. And he may of
course prevent such trespassers from carrying off with them any property of the
United States. Ibid., par. 1715.
In the absence or any statute directly or by necessary implication extending the
powers of the local government of the District of Columbia over the military reser-
vation and post at the Arsenal in Washington, I eld (May, 1879) that the health
officer appointed by the Commissioners (constituting such government) would not
be empowered of his own authority, and without the consent of the military com-
mander, to enter upon such reservation and remove or abate a nuisance deemed by
him to exist thereon. The effect of the legislation in regard to the government of
the District is to except therefrom the public buildings and grounds of the United
States, which are left to the charge of certain specified officials. Even farther re-
moved from such government is the reservation at the Arsenal, the same being a
military post commanded by the President through a military subordinate, and
governed by military orders and regulations. Ibid., par. 1705.
Held, that an act of Congress granting a railroad company a right of way through
"the public lands" of the United States did not authorize it to enter and construct
a track upon the soil of a military reservation, the same being no part of "the pub-
lic lands," (a) and that such entry was therefore a trespass. Ibid., par. 1700, but
see par. 1619, post.
The right of way through several military reservations has been granted to various
railroads, or other corporate bodies, by express legislation in each case.
TAXATION ON KESERVATIONS.
The authorities of a State or Territory (or, of course, of a county, town, etc.) are
not empowered to tax an officer or soldier of the Army on account of his pay, or for
any personal property in his possession properly required for the due exercise of his
office or performance of his military duties. Officers and soldiers of the Army are
instrumentalities provided by law to enable or assist the President to exercise his
constitutional function of Commander in Chief and Executive of the nation. The
pay and emoluments furnished them by Congress are means to make their services
possible and effective, and their right to receive and enjoy the same can not be in any
degree impaired or infringed upon by the authorities of a distinct and inferior sov-
ereignty. And the same principle of exemption properly applies to their arms,
equipments, horses, and other personal property required to be possessed and
employed bv them in the military service, (b) Dig. Opin. J. A. G., par. 2425.
The principle exempting from taxation the office or salary of an officer of the
United States applies to officers on the retired list equally as to those on the active
a Maddux v. U. S., 20 Ct. Cls., 198, 199.
6 In the leading case applicable to this subject — Dobbins v. Commissioners of Erie County, 16 Peters,
435 — the Supreme Court of the United States, in declaring to be unconstitutional a State statute, so
MILITARY LAWS OF THE UNITED STATES. 618
was committed, be liable to and receive the same punish-
ment as the laws of the State in which such place is situ-
ated now provide for the like offense when committed
within the jurisdiction of such State, and the said courts
are hereby vested with jurisdiction for such purpose; and
no subsequent repeal of any such State law shall affect any
such prosecution.1 Act of July 7, 1898 (30 Stat. L., 717}.
list of the Army. Retired officers, being a part of the Army, are a part of the
machinery of the Government, though a part not often called into active operation.
But though a retired officer can not legally be taxed by State or municipal authorities
on account of his Army pay as property or income, he is subject to be taxed for
other property owned and 'held at his place of residence, like any other citizen.
Ibid., par. 2426.
An officer or soldier of the Army, though not taxable officially, may be and often
is taxable personally. He is not taxable by a State for his pay, or for the arms,
instruments, uniform clothing, or other property pertaining to his military office or
capacity, but as to household furniture and other personal property, not military, he
is (except where stationed at a place under the exclusive jurisdiction of the United
States) equally subject with other residents or inhabitants to taxation under the
local law. (a) Ibid., par. 2428.
1 This statute replaces section 5391 of the Revised Statutes, which provided that
any offense committed in any place ceded to and under the jurisdiction of the United
States shall, where not specially made punishable by any law of the United States,
be visited with the same punishment as is provided for such offense by the laws "now
in force" of the State within which such place is situated. This provision, originally
enacted March 3, 1825, was substantially reenacted April 5, 1866. In 1832 it was
ruled by the Supreme Court (6) that the provision of 1825 was " limited to the laws of
the several States in force at the time of its enactment." And in recent cases, arising
in Montana (c) and Colorado (d) it has been held that the provision in sec. 5391 did not
apply to the offense because these States, with their laws, did not come into existence
till subsequently to the date of the enactment of 1866. Thus the section was oper-
ative neither as to offenses committed in States which entered the Union since 1866
nor as to those committed in States where, at the date of the commission, there
existed no criminal statute providing for the punishment of the particular offense.
' ' For the reasons above set forth a remedy was applied by the enactment of the act
of July 7, 1898."
far as it authorized the taxing of the office of a captain in the U. S. revenue service, held as follows:
" The compensation of an officer of the United States is fixed by a law made by Congress. It is in its
exclusive discretion to declare what shall be given. It exercises the discretion and tixes the amount,
and confers upon the officer the right to receive it when it has been earned. Any law of a State
imposing a tax upon the office, diminishing the recompense, is in conflict with the law of the United
States which secures the allowance to the officer." Further: "Taxation by a State can not act upon
the instruments, emoluments, and persons which the United States may use and employ as neces-
sary and proper means to execute their sovereign powers. * * * The State governments can
not lay a tax upon the constitutional means employed by the Government of the Union to exe-
cute its constitutional powers." In a later case— Society for Savings v. Coite, 6 Wallace, 605— the
same court declares: "All subjects over which the sovereign power of a State extends are, as a gen-
eral rule, proper subjects of taxation, but the power of a State to tax does not extend to those
means which are employed by Congress to carry into execution the powers conferred in the Fed-
eral Constitution. Unquestionably the taxing power of the States is very comprehensive and per-
vading, but it is not without limits. State tax laws can not restrain the action of the National Gov-
ernment, nor can they abridge the operation of any law which Congress may constitutionally pass."
This general doctrine is applied by Attorney-GenerarBlack, IX Opins, 477, as follows: "The authori-
ties of a State can not impose a tax upon the salary of a Federal officer, orupon the compensation paid
by the United States to any person engaged in their service." And as illustrating the principle
involved, fee also McCulloch v. Maryland, 4 Wheaton, 316; Weston v. Charlestown, 2 Peters, 449; Sea-
right v. Stokes, 3 Howard, 151 ; Bank of Commerce v. New York, 2 Black, 620; Provident Inst. v. Mass.,
6 Wallace, 611 ; The Banks r. The Mayor, 7 id., 16: Bank v. Supervisors, id., 26; Railroad Co. v. Peniston,
18 id., 5; Carrol ?'. Perry, 4 McLean, 25: Stetson r. Bangor, 56 Maine, 274; Opinion of Justices, 63 N.
Hamp., 634; United States r. Weise, 5 Pa. L. .T. R., 61; West. Un. Tel. Co. v. Richmond, 26 Grat,, 1;
State v. Garton, 32 Ind.. 1: VII Opins. At. Gen.. 578; XIV Id., 199. In the late case of Railroad Company
v. Peniston, 18 Wallace, 30, it is specified by Strong, J., that " the States may not levy taxes the direct
effect of which shall be to hinder the exercise of any powers which belong to the National Govern
ment."
a Finley v. Philadelphia, 32 Penn 381.
6U. S. v. Paul, 6 Peters 141.
cU. S: v. Burnaby, 51 Fed. Rep., 20.
dU. S. v. Curran, cited in Exec. Doc. No. 14., H. R.. 53d Cong., 1st session.
614 MILITARY LAWS OF THE UNITED STATER.
PROTECTION OF RESERVATIONS.
Par. Par.
1602. Cutting or injuring timber. 1609. Employment of force.
1603. Breaking fences, driving cattle, etc. 1610,1611. Institution of suits, restriction.
1604. Seizures of timber. 1612. Setting fires.
1605. Unlawful inclosures. 1613. The same; failure to extinguish
1606. Complaints. fires.
1607. Settlements not obstructed. 1614. The same; disposition of fines. .
1608. Penal clause.
iuSngintrees on 1602. If any person or persons shall knowingly and
Served* or ^i unlawfully cut, or shall knowingly aid, assist, or be
chased for public employed in unlawfully cutting, or shall wantonly destroy
i8Mpar483i 18?5> v> or inJure? or procure to be wantonly destroyed or injured,
any timber tree or any shade or ornamental tree, or smy
other kind of tree, standing, growing, or being upon an}7
lands of the United States, which, in pursuance of law,
have been reserved, or which have been purchased by the
United States for any public use, every such person or
persons so offending, on conviction thereof before any
circuit or district court of the United States, shall, for
Punishment, every such offense, p&y a fine not exceeding five hundred
dollars, or shall be imprisoned not exceeding twelve
months. Act of March 3, 1875 (18 Stat. Z., 481).
etrcea?nncVo?fng ^ any Person or persons shall knowingly and unlaw-
se?veSd°f or' Spur- ^u^y break or destroy any fence, wall, hedge, or gate
chased for public mciosjng anv jan(js of the United States, which have, in
pursuance of any law, been reserved or purchased by the
United States for any public use, every such person so
offending, on conviction, shall, for every such offense,
PaJ a tine not exceeding two hundred dollars, or be
imprisoned not exceeding six months.1 Sec. 2, ibid.
e?c?andgdfrfvcinsg 1603. If any person or persons shall knowingly and un-
fandsofuVs^lawfu^ break, open, or destroy any gate, fence, hedge,
served for public or wa]1 inciosjng any iands of the United States, reserved
or purchased as aforesaid, and shall drive any cattle,
horses, or hogs upon the lands aforesaid for the purpose
of destroying the grass or trees on the said grounds, or
where they may destroy the said grass or trees, or if any
tie ^"to enter sucn Person or persons shall knowingly permit his or their
through in cio-cattle. horses, or hogs to enter through any of said inclo-
sures ofsuch ' & e •/
lands. sures upon the lands of the United States aforesaid, where
the said cattle, horses, or hogs may or can destroy the
grass or trees or other property of the United States on
1 For sections of this statute conferring powers on the Secretary of the Interior, see
23 Stat. L., p. 103.
MILITARY LAWS OF THE UNITED STATES. 615
the said land, every such person or persons so offending,
on conviction, shall pay a fine not exceeding five hundred Punishment,
dollars, or be imprisoned not exceeding twelve months:
Provided, That nothing in this act shall be construed to
apply to unsurveyed public lands and to public lands sub-
ject to preemption and homestead laws, or to public
lands subject to an act to promote the development of the
mining resources of the United States, approved May
tenth, eighteen hundred and seventy-two.1 Sec. 3, ibid.
1604. If any timber cut on the public lands shall be besrei^u[e0°nf e^
exported from the Territories of the United States it shall PU^C J»«^ )V
be liable to seizure by United States authority wherever 20' P- 46-
found. Act of April 30, 1878 (20 Stat, L., 46).
Every person who unlawfully cuts, or aids or is employed fo?2mberdepre-
in unlawfully cutting, or wantonly destroys or procures datlons-
to be wantonly destroyed, any timber standing upon the
land of the United States which, in pursuance of law, may
be reserved or purchased for military or other purposes,
or upon any Indian reservation, or lands belonging to or indfan^iandl to
occupied b}T any tribe of Indians under authority of the Sec-5388»B-s-
United States, shall pay a fine of not more than five hun-
dred dollars or be imprisoned not more than twelve
months, or both, in the discretion of the court.2 Act of
June 4, 1888 (25 Stat. L., 166}.
1605. All inclosures of any public lands in any State or
Territory of the United States, heretofore or to be here-
after made, erected, or constructed by any person, party, 23Fpb32i! 1885> v'
association, or corporation, to any of which land included
within the inclosure the person, party, association, or cor-
poration making or controlling the inclosure had no claim
1 The Government of the United States has, with respect to its own lands within
the limits of a State, the rights of an ordinary proprietor to maintain its possession,
and to prosecute trespassers; and may legislate for their protection, though such leg-
islation may involve the exercise of police power; and may complain of, and take
steps to prevent, acts of individuals in fencing in its lands, even though done for the
purpose of irrigation and pasturing. Camfield v. U. S., 167 U. S., 518.
2 Section 5388 of the Revised Statutes, as amended by the act of June 4, 1888, which
forbids the cutting or wanton destruction of timber upon military or Indian reserva-
tions, does not apply to one who removes and uses for building purposes timber which
has been cut on an Indian reservation by another person without his aid and encour-
agement, U. S. v. Konkapot, 43 Fed. Rep., 64. Persons cutting trees growing on
the lands of the United States, without permiscaon, are mere trespassers, performing
an illegal act, and acquire no right, title, or interest in the wood by reason of the
severance. No. Pac. R, R. Co. v. Lewis, 162 U. S., 366; Schulenberg v. Harriman,
21 Wall., 44.
The Land Department has authority to make seizures, through its officers or agents,
of timber unlawfully cut on the public lands. Timber so unlawfully cut, which has
been seized by duly authorized agents of the Land Department, and is in their cus-
tody, may be disposed of by that Department, and whether this be done by private
sale, with or without previous advertisement, is a matter entirely discretionary there-
with. XVIII Opin. Att. Gen., 434; Cotton v. U. S., 11 How., 229; U. S. v. Cook,
19 Wall., 594; Wells v. Nickles, 104 U. S., 447.
616 MILITARY LAWS OF THE UNITED STATES.
or color of title made or acquired in good faith, or an as-
serted right thereto by or under claim, made in good faith
with a view to entry thereof at the proper land office under
the general laws of the United States at the time any such
inclosure was or shall be made, are hereby declared to bo
oMnSosure'for6 unlawful, and the maintenance, erection, construction, or
bidden. control of any such inclosure is hereby forbidden and pro-
ri^htsewithouf hibited; and the assertion of a right to the exclusive use
title prohibited. an(j occupancy of any part of the public lands of the United
States in any State or any of the Territories of the United
States, without claim, color of title, or asserted right as
above specified as to inclosure, is likewise declared unlaw-
ful and hereby prohibited. Aet of February 25, 1885
(23 Stat. Z., 381).
diS?lcetd aufr- 1606' That Jt sha11 be the dutJ of the district attorney of
pfa3ints0madCe0Totne United States for the proper district, on affidavit filed
suits.1111*6 civil with him by any citizen of the United States that section
sec. 2, ibid. one of ^his act is being violated, showing a description of
the land inclosed with reasonable certainty, not necessarily
by metes and bounds nor by governmental subdivisions of
surveyed lands, but only so that the inclosure may be
identified, and the persons guilty of the violation as nearly
as may be, and by description, if the name can not on
reasonable inquiry be ascertained, to institute a civil suit
in the proper United States district or circuit court, or Ter-
ritorial district court, in the name of the United States,
and against the parties named or described who shall be in
charge of or controlling the inclosure complained of as
defendants; and jurisdiction is also hereby conferred on
any United States district or circuit court or Territorial
^Jurisdiction of district court having jurisdiction over the locality where
the land inclosed, or any part thereof, shall be situated, to
hear and determine proceedings in equity, by writ of in-
junction, to restrain violations of the provisions of this act;
and it shall be sufficient to give the court jurisdiction if
service of original process be had in any civil proceeding
on any agent or employee having charge or control of the
inclosure; and any suit brought under the provisions of
have°h <r?ced^kis secti°n shall have precedence for hearing and trial
ence. over other cases on the civil docket of the court, and shall
be tried and determined at the earliest practicable day.
In any case if the inclosure shall be found to be unlawful,
the court shall make the proper order, judgment, or decree
mSentemaryi'udg ^or ^e destruction of the inclosure, in a summary way,
unless the inclosure shall be removed by the defendant
within five da}^s after the order of the court. Sec. 2, ibid.
MILITARY LAWS OF THE UNITED STATES. til 7
1607. That no person, by force, threats, intimidation, -or
by any fencing or inclosing, or any other unlawful means, fannddsTot Ptobbe
shall prevent or obstruct, or shall combine and confederate obstructed.
with others to prevent or obstruct, any person from peace-
ably entering upon or establishing a settlement or residence
on any tract of public land subject to settlement or entry
under the public land laws of the United States, or shall
prevent or obstruct free passage or transit over or through
the public lands: Provided, This section shall not be held Pro™°'
to affect the right or title of persons who have gone upon,
improved, or occupied said lands under the land laws of the
United States, claiming title thereto, in good faith. Sec.
3, ibid.
1608. That any person violating any of the provisions
hereof, whether as owner, part owner, agent, or who shall
aid, abet, counsel, advise, or assist in any violation hereof,
shall be deemed guilty of a misdemeanor, and fined in ament-
sum not exceeding one thousand dollars and be imprisoned
not exceeding one year for each offense. Sec. h ibid.
1609. That the President is hereby authorized to take thSde?o tike
such measures as shall be necessary to remove and destroy S?ef toryremove
any unlawful inclosure of any of said lands, and to employ SXjJ15.f111 in~
civil or military force as may be necessary for that purpose.
Se-c. 5, ibid.
1610. Where the alleged unlawful inclosure includes ^fS^^t
less than one hundred and sixty acres of land, no suittlon-
shall be brought under the provisions of this act without
authority of the Secretary of the Interior. Sec. 6, ibid.
1611. Nothing herein shall affect any pending suits to Same-
work their discontinuance, but as to them hereafter they
shall be prosecuted and determined under the provisions
of this act. 1 Sec. 7, ibid.
1612. Any person who shall willfully or maliciously setet^etting fires»
on fire, or cause to be set on fire, any timber, underbrush, 31May165^ 1900> v'
or grass upon the public domain, or shall carelessly or
negligently leave or suffer fire to burn unattended near
any timber or other inflammable material, shall be deemed
1 Where persons build a fence, partly on their own land and partly on lands belong-
ing to the Government, whether the act be technically a purpresture or simply a
public nuisance, an action may be maintained in equity to compel, by mandatory
injunction, the removal of the fence from the Government land. U. S. v. Brighton
Ranch Co., 26 Fed. Rep., 218. The United States have a right to an injunction in a
court of equity to prevent the inclosing of public lands, and, as long as the legal title
remains in the Government, in cases where the land has been entered, it can protect
those lands in the same manner, except where the party who has entered the land
has given express license to build a fence on it. 25 ibid., 465.
The act of June 3, 1878 (20 Stat. L., 89), authorized the sale of certain timber in
the States of California, Oregon, Nevada, and Washington, and imposed a penalty
for the unlawful cutting of timber in those States.
618
MILITARY LAWS OF THE UNITED STATES.
Failure to ex
tinguish fires.
Sec. 2, ibid.
Disposition
fines.
Sec. 3, ibid.
guilty of a misdemeanor, and, upon conviction thereof in
any district court of the United States having jurisdiction
of the same, shall be fined in a sum not more than five
thousand dollars or be imprisoned for a term of not more
than two years, or both. Act of May 5, 1900 (31 Stat. L.,
169).
1613. Any person who shall build a fire in or near any
forest, timber, or other inflammable material upon the
public domain shall, before leaving said fire, totally extin-
guish the same. An}7 person failing to do so shall be
deemed guilty of a misdemeanor, and, upon conviction
thereof in any district court of the United States having
jurisdiction of the same, shall be fined in a sum not more
than five thousand dollars, or be imprisoned for a term of
not more than two years, or both. Sec. #, ibid.
01 1614. In all cases arising under this act the fines col-
lected shall be paid into the public-school fund of the
county in which the lands where the offense was com-
mitted are situate.1 Sec. 3. ibid.
DISPOSITION OF LANDS.
Par.
1615. Congress to regulate.
1616. Sale of abandoned military reser-
- vations.
1617. The same, preference to homestead
settlers.
Par.
1618. Grants to municipal corporations.
1619. Rights of way on the public lands.
1620. The same, on military reservations.
P<FsTierin°fcon- 1615< The Congress shall have power to dispose of, and
SoenSSArtCivssec make all needful rules and regulations respecting, the terri-
3, par. 2. tory or other property belonging to the United States.2
Constitution of the United States, Art. IV, sec. 3, par. 2.
1This enactment replaces the act of February 24, 1897 (29 Stat. L., 594), in pari
mater ia. See also the title Forest Reservations in the chapter, post, entitled NATIONAL
PARKS.
2 The scope of this provision is most comprehensive, the authority conferred thereby
upon the legislative branch of the Government being held to extend from the forma-
tion of a territorial government to the matter of the sale of a small amount of person-
alty. That neither land nor any interest in land of the United States can be sold
or otherwise disposed of by the head of an Executive Department or other executive
official or by a military officer, without the authority of Congress, is settled law. (a)
Dig. Opin. J. A. G., par. 2087.
The Constitution vests in Congress the exclusive power to dispose of the property
of the United States, real or personal. The Secretary of War, in the absence of
authority from Congress, can not alienate land of the United States. Ibid. , pars. 2087-
2089.
There is no way for titles to land to be divested out of the United States except in
strict pursuance of some law of the United States; and, as no statute of limitations
runs against the United States, occupancy and possession alone, even for a great length
a This fundamental rule of our public law is expressed by Attorney-General Hoar (XIII Opins., 46)
as follows: " I am clearly of opinion that the Secretary of War can not convey to any person any
interest in land belonging to the United States, except in pursuance of an act of Congress expressly or
impliedly authorizing him to do so." And see United States v. Nichols, 1 Paine, 646 (cited post) ; Sea-
bury v. Field, Me \llister, 1; United States r. Hare, 4 Sawyer, 653, 669.
MILITARY LAWS OF THE UNITED STATES. 619
1616. That whenever, in the opinion of the President of
the United States, the lands, or any portion of them, in-
eluded within the limits of any military reservation here-
tofore or hereafter declared, have become or shall become
useless for military purposes, he shall cause the same, or so
much thereof as he may designate, to be placed under the
control of the Secretary of the Interior for disposition as
of time, can not ripen into title as against the United States. Drew v. Valentine, 18
Fed. Rep., 212; Villey v. Jarbeau, 35 Louisiana Ann., 542.
In the absence of such authority, the lands of the United States, whether held by
original proprietorship, or acquired by purchase or gift, or by conquest, can not, even
for a purely benevolent or religious purpose, be given away any more than they can
be transferred for a valuable consideration. Nor, without such authority, can they
be conveyed temporarily by lease, whether for a short or long period, (a) Dig. Opin.
J. A. G., par. 2087. But for authority to lease lands not needed for the use of the
War Department, see the act of July 28, 1892 (27 Stat, L., 321), par. 1620, post.
Nor, without authority from Congress, can an Executive Department or officer convey
away any usufructuary interest in land of the United States. Thus it has been repeat-
edly held by the Judge- Advocate-General that the Secretary of War, or a military
commander, was not empowered, of his own authority, to grant a right of way over a
military reservation to a railroad company or other corporation, and in numerous
statutory enactments such a right has been expressly given by Congress as the only
authority competent for the purpose. Ibid., par. 2088.
So held that the Secretary of War would not be authorized to transfer a lot belong-
ing to the United States in Washington to the Commissioners of the District of Colum-
bia for the erection of a hospital. So held that neither the Secretary of War nor a
department commander could grant to an individual or individuals the exclusive
right to use for an indefinite period certain water power belonging to the United
States, nor the exclusive right to mine the soil of a military reservation for a certain
term of years, nor a similar right to make and maintain for an indefinite period
ditches through a portion of such a reservation for the purpose of irrigating the lands
of private parties, nor the right annually to enter upon and occupy a military reser-
vation and cut and possess the hay crop growing thereon, (6) nor the right perma-
nently or indefinitely to occupy and use a portion of a reservation for a burying
ground. Ibid., par. 2088.
Disposition of buildings, etc. — The provision of the Constitution in regard to the dis-
position of public property applies to personalty equally as to realty. Thus no Execu-
tive Department or officer' can be empowered, except by the authority of Congress, to
dispose of personal property of the United States, (c) So held that, in the absence of
such authority, a military commander could not legally dispose of temporary build-
ings — not "fixtures" — erected upon a military reservation. So held that the Secre-
tary of War would not be authorized, in the absence of enabling legislation, to sell or
negotiate the bonds or promissory notes made to the United States by certain rail-
road companies, in consideration of rolling stock, etc., sold and transferred to the
same. And similarly held as to the authority of the Secretary to dispose of articles of
aSee Friedman v. Goodwin, 1 McAllister, 148, where a lease made by the post commander at San
Francisco, of a part of a "government reserve," though approved by the military governor of the
then Territory, and also by the Secretary 9f the Interior, was held void because not authorized by
Congress. The court declares the "utter impotency of any attempt by an officer of the Government
to alien any land, the property of the United States, without the authority of an act of Congress;"
adding that '"the President, with the heads of the Departments combined," could not effect such an
object. AndseelVOpins. At. Gen., 480; 9 id., 476; 13 id. ,46; United States v. Hare, 4 Sawyer, 670-671. In
the last case the court say: "The Secretary of the Treasury can not execute or approve of a lease of
any property belonging to the United States without special authority of law."
b A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. Cls., 255.
cThe leading case on this point is United States v. Nichols, 1 Paine, U. S. Circ. Ct. R., 646, in which
it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to
the United States, was illegal and invalid. The court say: "The Constitution declares that 'Con-
gress shall have power to dispose of and make all needful rules and regulations respecting the terri-
tory or other property belonging to the United States.' No public property can therefore be disposed
of without the authority of law, either by an express act of Congress for that purpose, or by giving
the authority to some Department or subordinate agent. No law has been shown authorizing the
sale of this lead ; nor is any such authority to be inferred from the general power vested in any of the
Departments of the Government. The power, if lodged anywhere, would seem most appropriately to
belong to the War Department. But there is no such express or implied power in that Department
to sell the public property put under its management." And see the same principle recognized in an
opinion 'of the Attorney-General, in XVI Opins., 477, in which it is held that the Secretary of War
was not empowered to sell arms to a State in the absence of authority from Congress.
620 MILITARY LAWS OF THE UNITED STATES.
hereinafter provided, and shall cause to be filed with the
Secretary of the Interior a notice thereof.1 Act of July •>.
1884(83 Stat. Z., 103).
ho^steldceset° 1617> That the provisions of the act approved August
tleFeb 15 1895 v twenty-third, eighteen hundred and ninety-four,
28, p. 664. are hereby extended to all abandoned military reservations
which were placed under the control of the Secretary of the
Interior under any law in force prior to the act of July
fifth, eighteen hundred and eighty-four. That the prefer-
ence right of entry given to actual settlers by the terms of
the act to which this is an amendment shall, so far as the
lands to which the provisions of said act are extended, take
effect and continue for six months from the date of this
amendatory act. Act of February 15, 1895 (28 Stat. L. , 664. )
inferior value, not impliedly authorized to be sold by section 1316, Revised Statutes.
And held that the fact that certain valuable public property was perishable and liable
to waste was not legally sufficient to justify the sale in the absence of statutory
authority. (a) Ibid., par. 2090.
The principle that buildings erected on the land of another without his consent
become his property does not apply to buildings erected by the United States on land
occupied jure belli by the Army in an enemy's country; but that, on subsequently
surrendering the land to the owner, the military authorities might legally remove
and retain or dispose of the buildings. Ibid., par. 2097.
Temporary buildings only erected by military orders on land of the United States
at a military post, to serve a temporary purpose, are in general personal property of
the United States, which may be removed by the direction or authority of the Sec-
retary of War. (6) But if the same be permanent structures and real estate, the
authority of Congress is necessary to their removal. Ibid., par. 2098.
The United States being tenant of land leased for military purposes at Fort Davis,
Tex., erected buildings thereon for the purposes of a military post. In view of the
fact that the relation was that of landlord and tenant, that the buildings were erected
for a purpose analogous to that of trade, and for a public use, and that in their erec-
tion there could certainly have been no intention to benefit the inheritance or add
to the freehold — held that such buildings were to be regarded not as fixtures but as
personal property, and removable by the tenant at any time before the expiration
of his- lease. Should the Government sell the buildings standing, the purchaser
would have the same right of disposition as the United States and no more. He
would therefore be obliged to remove them before the termination of the lease, unless
otherwise permitted by the owner of the premises. And held similarly of like build-
ings erected at Fort Union, N. Mex., where the United States was tenant at will,
the buildings not being intended as improvements, but merely for the use of the
troops. Ibid., par. 2099.
Where a post commander, without authority, took possession of land of the United
States for the purpose of erecting thereon a building for his personal use, and having
erected it assumed to hold and dispose of it as his own property, held that his act
was unauthorized and illegal, and that he acquired no legal estate in the building.
And similarly held where, without authority, he permitted an enlisted man of his
command to use land of the United States for the erection thereon of a dwelling and
to hold and dispose of such dwelling as his own property. Ibid., par. 2100.
Wood growing on a military reservation is the property of the United States.
So held that a contractor who cut such wood to fill a contract made by him with the
U n ited States to furnish wood to a military post could not legally be allowed to
remove or dispose of the same as his own property, and advised that he be paid
merely for the cutting. Ibid., par. 2101.
1 See note to section 1615, p. 618.
a Held that the "Cavalry Tactics," a work prepared under the orders of the Secretary of War by a
board of officers, was the property of the United States, and therefore could not, without the authority
of Congress, be disposed of to a bookseller with a view to its publication and sale by him on his
private account. Ibid.
b But such buildings can not be solfl without the authority of Congress. Lear r. U. S., 50 Fed., 65.
MILITARY LAWS OF THE UNITED STATES. 621
1618. The president is hereby authorized by proclama-
tion to withhold from sale and grant for public use to the
municipal corporation in which the same is situated all or
any portion of any abandoned military reservation not
exceeding twenty acres in one place. Act of March 3,
1893 (27 Stat. L. 593}.
1619. The right of way for the construction of high-
ways over public lands, is hereby granted.1 8'sec.42477,5K.s.
1620. The Secretary of War shall have authority, in his w!f migrant
discretion, to permit the extension of State, county, and ^ges;1 Erection
Territorial roads across military reservations; to permit tension ofroS"
the landing of ferries, the erection of bridges thereon; andetjuiy 5, 1884, s.
permit cattle, sheep or other stock animals to be driven 6> Yt 23' p' m
across such reservation, whenever in his judgment the
same can be done without injury to the reservation or in-
convenience to the military forces stationed thereon. Sec.
6, act of July 5, 1884 (23 Stat. L., 103}. •
LEASES OF PUBLIC PROPERTY NOT REQUIRED FOR PUBLIC USE.
1620. Authority is hereby given to the Secretary of War, W
when in his discretion it will be for the public good, to
lease, for a period not exceeding five years and re vocable Us^ly281892v
at any time, such property of the United States under his 27> p- 32L
control as may not for the time be required for public use
and for the leasing of which there is no authority under
existing law, and such leases shall be reported annually
to Congress: Provided* That nothing in this act contained Mineral, etc.,
lands excepted.
shall be held to apply to mineral or phosphate lands.2 Act
of July 28, 189*2 (27 Stat. Z., 321}.
1 For other statutes authorizing the Secretary of the Interior to grant rights of way
over the public lands of the United States, not included within military, Indian, or
other reservations, see the acts of March 3, 1875, 18 Stat. L., 482; March 3, 1891, 26
ibid., 1101; January 21, 1895, 28 ibid., 635; May 14, 1898, 29 ibid., 120; May 11,
1898, 30 ibid., 404, and February 15, 1901, 31 ibid., 790. This last enactment confers
authority upon the Secretary of the Interior to grant rights of way over lands
included in certain national parks and forest reservations, but with the condition
that such grants shall be made through military and Indian reservations with the
approval of the chief officer of the department under whom the supervision of the
reservation falls, and upon a finding by him that the same is not incompatible with
the public interest.
2 A license is an authority, revocable at pleasure, to do a particular act or series of
acts upon the land of another without possessing an estate therein. Morgan v. U. S.,
14 Ct. Cls.,319.
The Constitution (Art. IV, sec. 3, par. 2) provides that " The Congress shall have
power to dispose of, and make all needful rules and regulations respecting, the ter-
ritory or other property belonging to the United States." The scope of this provi-
sion "is most comprehensive, the authority conferred thereby upon the legislative
branch of the Government being held to extend from the formation of a Territorial
government to the matter of the sale of a small amount of personalty. That neither
land nor any interest in land of the United States can be sold or otherwise disposed
622 MILITARY LAWS OF THE UNITED STATES.
MILITARY POSTS.
Par.
1621. Permanent barracks.
1622. Title papers.
1623. Contracts not to exceed appropria-
tions.
1624. Expenditures for repairs, limita-
tion.
1625. Barracks for seacoast artillery, re-
striction.
Par.
1626. Post traders.
1627. Post school*.
1628. The same, bakeries.
1629. Post exchanges.
1630. Sales of liquor, etc.
barracks an * " t 1621. Permanent barracks or quarters and buildings and
Sec.ii36,K.s. structures of a permanent nature shall not be constructed
unless detailed estimates shall have been previously sub-
mitted to Congress, and approved by a special appropria-
of by the head of an Executive Department or other executive official, or by a mili-
tary officer, without the authority of Congress is settled law. (a)
In the absence of such authority, the lands of the United States, whether held by
original proprietorship or acquired by purchase or gift, or by conquest, can not, even
for a purely benevolent or religious purpose, be given away, any more than they can
be transferred for a valuable consideration. Nor without such authority can they
be conveyed temporarily by lease, whether for a short or long term, (b) Dig. Opin.
J. A. G., par. 2087.
Nor, without authority from Congress, can an Executive Department or officer con-
vey away any usufructuary interest in land of the United States. Thus it has been
repeatedly held by the Judge- Advocate-General that the Secretary of War (or a mili-
tary commander) was not empowered, of his own authority, to grant a right of way
over a military reservation to a railroad company or other corporation, and in numer-
ous statutory enactments such a right has been expressly given by Congress as the
only authority competent for the purpose.
And such rights when given can be exercised only within the terms of the grant.
Thus, where by an act of Congress there was granted to a railroad company a limited
and defined right of way across a military reservation (occupied by a military post) ,
held that the company was authorized simply to construct a track or roadway, and
was not empowered to put up depots, stock yards, cattle pens, or other erections
upon the land, or to appropriate land otherwise than for the roadway, (c)
So held that the Secretary of War could not, of his own authority, grant, in con-
sideration of the payment of toll to the United States, a right of way over a bridge
belonging to the United States. So held that the Secretary could not legally grant
to a company or individul the right to erect and maintain for an indefinite period a
hotel on the military reservation at Sandy Hook, (d) So held that the Secretary
would not be authorized to transfer a lot belonging to the United States at Wash-
ington to the Commissioners of the District of Columbia for the erection of a hospital.
So held that neither the Secretary of War nor a department commander could grant
to an individual or individuals the exclusive right to use for an indefinite peviod cer-
aThis fundamental ruleof our public law is expressed by Attorney-General Hoar, XIII Opins., 46, as
follows: "I am clearly of opinion that the Secretary of War can not convey to any person any
interest in land belonging to the United States, except in pursuance of an act of Congress expressly
or impliedly authorizing him to do so." And see United States v. Nichols, 1 Paine, 646 (d teapot);
Seabury v. Field, McAllister, 1; United States^. Hare, 4 Sawyer, 653,669.
bSee Friedman V.Goodwin,! McAllister, 118, where a lease made by the post commander at San
Francisco of a part of a "Government reserve," though approved by the military governor of the then
Territory, and also by the Secretary of the Interior, was held void because not authorized by Con-
gress. The court declares the "utter impotency of any attempt by an officer of the Government to
alien any land, the property of the United States, without the authority of an act of Congress;" add-
ing that "the President with the heads of the Departments combined" could not effect such an
object. And see IV Opins.Att.Gen.,480; 9 ibid. ,476; 13 ibid. ,46; United States v. Ha re, 4. Sawyer, 670-671.
In the last case the court sav: "The Secretary of the Treasury can not execute or approve of a lease of
any property belonging to the United States without special authority of law."
cSee this opinion affirmed by the Attorney-General in XIV Opins., 135.
dSee confirmatory opinion of the Attorney-General in XVI Opins., 205. In this case there was tin-
further objection that the State of New Jersey, in ceding to the United States jurisdiction over the
premises, by deed of March 10, 1846. had expressly declared tiiat the grant was •• for military pur-
poses," adding "and the said United States shall retain such jurisdiction so long as the said tract
shall be applied to the military or public purposes of the said United States, and no longer."
MILITARY LAWS OF THE UNITED STATES. 628
tion for the same, except when constructed by the troops;
and no such structures, the cost of which shall exceed
twenty thousand dollars, shall be erected unless by special
authority of Congress.
1622. It shall be the duty of all officers of the United J™\S|j|fg;s.
States having any of the title papers (property purchased,
tain water power belonging to the United States, nor the exclusive right to mine the
soil of a military reservation for a certain term of years, nor a similar right to make
and maintain for an indefinite period ditches through a portion of such a reservation
for the purpose of irrigating the lands of private parties, nor the right annually to
enter upon and occupy a military reservation and cut and possess the hay crop grow-
ing thereon, (a) nor the right permanently or indefinitely to occupy and use a por-
tion of a reservation for a burying ground. Ibid., 2088.
Held, however, that a distinction wras to be observed between a grant of a usu-
fructuary interest in land and a revocable license not involving a transfer of such
an interest. (6) Thus held that the Secretary of War would be authorized to permit
a telegraph company to erect posts upon a military reservation and attach to the same
telegraph wires, subject to their being removed 'at the will of the Government, if
found to interfere with the purposes for which the reservation was established. So
held that a municipal corporation might legally be permitted by the Secretary of
War to lay water pipes in the soil of the arsenal grounds at Springfield, Mass., the
same being equally for the benefit of the military authorities and the citizens, and
subject to removal at the will of the Government. And held that a post trader might
legally be licensed by the Secretary of War to erect the buildings necessary for his
business upon the land of the post for which he was appointed, (c) But held that
the Secretary of War was not empowered to accede to the application of an individual
to establish a ferry across a river within the limits of a military reservation, where
what was asked was not a mere license revocable at the will of the Secretary, but a
permanent franchise and grant of an exclusive usufructuary interest in the premises,
including even the right to charge tolls to the United States. And similary held in
a case of an application to be permitted to erect and maintain a permanent bridge
across a river forming a boundary of a military reservation, one end of which was to
be built upon the soil of the reservation, the application contemplating not a mere
license revocable at the will of the Government, but a permanent right of property
in the bridge, involving an easement in the land. Ibid., 2089.
The act of July 28, 1882, authorizes the Secretary of War, in his discretion, to
' ' lease for a period not exceeding five years, and revocable at any time, such prop-
erty of the United States under his control as may not for the time be required for
public use," such leases to be " reported annually to Congress;" but does not pre-
scribe as to the disposition of the moneys received as rents. Sec. 3621, Revised Stat-
utes, provides for the disposition of public moneys coming into the possession of any
person, and par. 698, Army Regulations of 1895, directs that "the face of the certificate
or receipt" shall "show to what appropriation" the funds belong. Advised that it
would be sufficient for any post quartermaster or other disbursing officer into whose
hands such rents should come to note the character of the payment upon his certifi-
cate, leaving it to the War Department to report the same in the aggregate to Con-
gress at the end of each year. Ibid., par. 2084.
From the act of July 5, 1884 (23 Stat. L., 103), it may be regarded as certain that it
was the view of Congress that an explicit authority was necessary for even a tran-
sient occupation of a military reservation for other than its special purpose. The act
of July 28, 1892, authorizing the Secretary of War to lease such property of the
United States under his control as may not for the time be required for public use,
forbids an occupation which contemplates permanency, or duration longer than five
years. The Secretary of War has no power to accept a donation of property for the
Governnient for use in perpetuity by Roman Catholics. A revocable license, with-
out limitation as to time, by the 'Secretary of War to a Roman Catholic archbishop,
to erect and maintain a chapel on the military reservation at West Point, transcends
the statute. XXI Opin. Att, Gen., 537; ibid., 473; ibid., 47; XIX ibid., 28.
a A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. Cls., 255.
oSee this distinction recognized in opinions of the Attorney-General of October 1 and November 22,
1878 (XVI Opins., 152,205), in the former of which it was held that the Secretary of the Navy was not
empowered to authorize the city of Chelsea, Mass., to continue one of its main sewers through the
grounds of the United States Naval Hospital
cSee XIV Opin. Att. Gen., 125.
624 MILITARY LAWS OF THE UNITED STATES.
or about to be purchased, for erection of public buildings)
in their possession, to furnish them forthwith to the
Attorney-General.1 No public money shall be expended
until the written opinion of the Attorney-General shall
be had.2
1623. No contract shall be entered into for the erection,
y 25, 1868, c. repair, or furnishing of any public building, or for any
233, s. 15, p. pubijc improvement, which shall bind the Government to
»ec.3733,R.s. pay ft |arger sum of money than the amount in the
Treasury appropriated for the specific purpose.3
1624. That hereafter no expenditures exceeding five
23Jp1iii- re? '27' hundred dollars shall be made upon any building or mili-
1893, v. 27, p. 484. tary post,* or grounds about the same, without the
approval of the Secretary of War for the same, upon de-
tailed estimates by the Quartermaster's Department; and
1 The act of February 27, 1877 (19 Stat. L., 242), contains a requirement "that it
shall be the duty of all officers of the United States having any of the title papers (of
property purchased, or about to be purchased, for the erection of public buildings)
in their possession, to furnish them, forthwith, to the Attorney-General. No public
money shall be expended until the written opinion of the Attorney-General shall
be had."
All papers relating to the Washington Aqueduct and public buildings and grounds
in the District of Columbia will be filed in the office of the Chief of Engineers. All
other deeds and papers pertaining to the title or sale of, and any lease, grant, license,
or easement of, upon, or over any military reservation or other lands under the
jurisdiction of the War Department, will be filed in the office of the Judge-Advocate-
General. When any such papers come into the possession of any bureau they shall
within five days thereafter be transferred to the office of the Judge- Advocate-General.
Par. 786, A. R., 1901.
2 See paragraph 334, ante.
3The custody of a public building, in the absence of a statute, an appropriation, a
regulation, or the order of the head of an Executive Department, is vested in the
officer having it in his official possession. Gray v. U. S., 23 Ct. Cls., 323.
4 A military station is merely synonymous with the term "military post," and
means a place where troops are assembled; where military stores, animate and inan-
imate, are kept and distributed; where military duty is performed or military pro-
tection afforded; where something, in short, more or less closely connected with
arms or war is kept or is to be done. Phistererv. U. S., 12 Ct. Cls., 98, 107.
POSTS.
Permanent military posts are established under the direction of the Secretary of
War, by whom their names will be designated. Par. 216, A. R., 1901.
Permanent posts will be styled "forts," and points occupied temporarily by troops,
"camps." Par. 217, ibid.
The commander of a post is responsible for its safety and defense, and for the dis-
cipline, drill, and tactical instruction of his command, to which ends all other gar-
rison duties will be made- subservient. He will be responsible for the preservation
and proper application of public property, for the strict enforcement of laws and
regulations, and for the proper condition of quarters and defenses. He wfll make an
inspection of his command on the last day of every month, will satisfy himself by
frequent personal examination that the disbursements of all officers in charge of
funds are in accordance with law and regulations and their accounts correctly stated,
and will make such reports of these inspections and examinations as the department
commander may direct. Par. 218, ibid.
The staff of a post commander will consist of such staff officers as are on duty at
the post and such line officers as may be required for staff duties. Their official
designations will be as follows: Adjutant, quartermaster, commissary, surgeon, assist-
ant surgeon, engineer officer, ordnance officer, and signal officer. Par. 221, ibid.
MILITAEY LAWS OF THE UNITED STATES. 625
the erection, construction, and repair of all buildings and
other public structures in the Quartermaster's Department
shall, as far as may be practicable, be made by contract,
after due legal advertisement.1 Act of February 27, 1893
(27 Stat. Z., 484).
1625. For the erection of barracks and quarters f or co^^£°t?lle°r*
artillery in connection with the project adopted for sea-pojs^e 6 1900 y
coast defense, there shall not hereafter be expended at31'?-624-
any one post more than one thousand two hundred dollars
per man for each man required for one relief to man the
guns at the post up to eighty-three men, the present per-
manent strength of a battery, enlisted and commissioned,
and for each man required beyond this number six hun-
dred dollars per man, from any appropriation made by
Congress, unless special authority of Congress be granted
for a greater expenditure. Act of June 6, 1900 (31 Stat.
L., 624).
POST TRADERS.
1626. That where a vacancy now exists or hereafter tQVacancies not
occurs in the position of post trader at any military post 27Jan;J^ 1893> v-
it shall not be filled, and the authority to make such ap-
pointment is hereby terminated: Provided, That in the
event of the death of a post trader his personal represent-
ative shall be allowed by the Secretary of War a reason-
able time in which to close the business.2 Act of January
28, 1893(27 Stat. L.,
1 For other restrictions in respect to the construction and repair of quarters at
military posts, see the title Barracks and Quarters in the chapter entitled THE QUAR-
TERMASTER'S DEPARTMENT.
Expenditures of labor, money, or material upon posts will be strictly limited to the
amounts allowed by law and regulations. Par. 222, A. R., 1901.
When practicable, temporary buildings for the use of the Army will be erected by
its enlisted force, and necessary repairs of public buildings at garrisoned posts not
appropriated for or specially authorized will be made by the troops. Par. 223, ibid.
In case of emergency, when reference to higher authority is impracticable, depart-
ment commanders may order the purchase of material and engagement of services
necessary for the preservation of public buildings or property, not to exceed in
amount $500 for any post, but no greater sum will be expended without the sanction
of the Secretary of War. Par. 224, ibid.
When a military post located upon lands belonging to the United States is aban-
doned the Secretary of War has no power, in the absence of authority from Congress,
to order a sale of the building, and such a sale is void. Lear v. U. S., 50 Fed. Rep.,
65. A sale by a military officer if not authorized by the usages of war, or if of
property not under a valid condemnation, is a trespass and passes no title. Bowlew
v. Lewis, 48 Mo., 32.
2 Section 1113 of the Revised Statutes, which authorized the Secretary of War to
" permit one or more trading establishments to be maintained at any military post
on the frontier not in the vicinity of any city or town," was repealed and replaced by
section 3 of the act of July 24, 1876 (19 Stat. L., 100), which authorized "one trader
at each military post, to be appointed by the Secretary of War upon the recommenda-
tion of the council of administration." These statutes have been replaced and ren-
dered inoperative by the act of January 28, 1893 (27 Stat. L., 426) .
22924—08 - 40
626 MILITARY LAWS OF THE UNITED STATE*.
POST SCHOOLS.
Post schools. 1627. Schools shall be established at all posts, garrisons,
Sec. 27, July 28, '
1866, v. 14, p. 336. and permanent camps at which troops are stationed, in
' which the enlisted men may be instructed in the common
English branches of education, and especially in the his-
tory of the United States; and the Secretary of War may
detail such officers1 and enlisted men as may be necessary
to carry out this provision. It shall be the duty of the
post or garrison commander to set apart a suitable room
or building for school and religious purposes.
POST BAKERIES.
Post bakeries, 1628. That f or the current fiscal year and thereafter there
schools, kitch- J .
ens, gardens, etc. mav be expended from the appropriation for regular sup-
June 13, 1890, v. J \
26, p. 152. plies the amounts required for the necessary equipments
of the bakehouse to carry on post bakeries; for the neces-
sary furniture, text-books, paper, and equipments of the
post schools; for the tableware and mess furniture for
kitchens and mess halls; * each and all for use of
the enlisted men of the Army.2 Act of June SO, 1890 (26
Stat. Z., 152).
POST EXCHANGES.
andstpostaglrs 16^9. That hereafter no money appropriated for the sup-
dejuiy 16 1892 v Por^ °^ the Army shall be expended for post gardens or
27, p. 178. exchanges; but this proviso shall not be construed to pro
hibit the use, by post exchanges, of public buildings or
public transportation when, in the opinion of the Quarter-
master-General, not required for other purposes. Act of
July 16, 1892 (27 Stat. Z., 178).
wine6 etc bpro- 1630. The sale of or dealing in beer, wine, or any intoxi-
hiFebd2, 1901, s catmg liquors by any person in any post exchange or can-
38, v. si, P. 758. teen or Army transport or upon any premises used for
military purposes by the United States is hereby pro-
hibited. The Secretary of War is hereby directed to carry
the provisions of this section into full force and effect.3
Sec. 38, act of February 2, 1901 (31 Stat. Z., 758).
1 Fo- statutory duties of post and regimental chaplains in respect to post schools,
see the chapter entitled POST CHAPLAINS. For regulations in regard to post schools,
see paragraphs 355-362, Army Regulations of 1901. For provisions of statutes respect-
ing text-books, supplies of paper, etc., see paragraph 1223, post.
?For regulations in respect to the management and administration of post bakeries,
see paragraphs 335-340, Army Regulations of 1901.
3 This section replaces the requirements of the act of June 13, 1890 (26 Stat. L.,
154), and section 17 of the act of March 2, 1899 (30 ibid., 937), in pari materia. For
orders carrying this provision into effect, see paragraph 365, Army Regulations of
1901.
CHAJPTER XXXIV.
THE PUBLIC PROPERTY.
Par.
1631-1636. Acquisition and accounta-
bility.
1637-1640. Deficiency in and damage to
property.
Par.
1641. Disposition of condemned prop-
erty.
1642-1649. Offenses against public prop-
erty.
ACQUISITION1 AND ACCOUNTABILITY.
Par
1631. Power to acquire property vested
in Congress.
1632. Accountability of company com-
mander.
1633. Property returns.
Par.
1634. Certificates.
1635. Methods of making returns not
changed.
1636. Regulations by heads of Depart-
ments.
1631. The Congress shall have power to dispose of andqu^ewe^° da£
make all needful rules and regulations respecting the ter- j^^ ?n°Pco£
ritory or other property belonging to the United States. 2grjrst- IV sec
Constitution, Art, 7F, sec. 3. '
constitution.
*See also the chapter entitled CONTRACTS AND PURCHASES.
2 See note to paragraph 1615, ante.
The provision of the Constitution in regard to the disposition of public property
applies to personalty equally as to realty. Thus no Executive Department or officer
can be empowered, except by the authority of Congress, to dispose of personal
property of the United States. (a) So, held that, in the absence of such authority, a
military commander could not legally dispose of temporary buildings — not "fix-
tures"— erected upon a military reservation. So, held that "the Secretary of War
would not be authorized, in the absence of enabling legislation, to sell or negotiate
the bonds or promissory notes made to the United States by certain railroad com-
panies, in consideration of rolling stock, etc., sold and transferred to the same. And
similarly held as to the authority of the Secretary to dispose of articles of inferior
value, not impliedly authorized to be sold by section 1316, Revised Statutes. And
held that the fact that certain valuable public property was perishable and liable to
waste was not legally sufficient to justify the sale in the absence of statutory author-
ity. Held that the Cavalry Tactics, a work prepared under the orders of the Secre-
tary of War by a board of officers, was the property of the United States, and there-
fore could not, without the authority of Congress, be disposed of to a bookseller with
a The leading case on this point is United States v. Nichols (1 Paine, U. S. Circ. Ct. R., 646), in which
it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to
the United States was illegal and invalid. The court say: "The Constitution declares that ' Congress
shall have power to dispose of and make all needful rules and regulations respecting the terri-
tory or other property belonging to the United States.' No public property can therefore be disposed
of without the authority of law, either by an express act of Congress for that purpose or by giving
the authority to some Department or subordinate agent. No law has been shown authorizing the
sale of this lead, nor is any such authority to be inferred from the general power vested in any of the
Departments of the Government. The power, if lodged anywhere, would seem most appropriately to
belong to the War Department; but there is no such express or implied power in that Department to
sell the public property put under its management." And see the same principle recognized in an
opinion of the Attorney-General (in XVI Opins., 477), in Ayhich it is held that the Secretary of War
was not empowered to sell arms to a State in the absence of authority from Congress.
627
628 MILITARY LAWS OF THE UNITED STATES.
of coSp£nybS 1632> Every officer commanding a troop, battery, or com-
Sothnii?geertcforPany ig charged with the arms, accouterments, ammuni-
rt.
10 Art. war. t\on^ clothing, or other military stores belonging to his
command, and is accountable to his colonel in case of their
being lost, spoiled, or damaged otherwise than by unavoid-
able accident, or on actual service.1 Tenth Article of War.
PKOPERTY ACCOUNTABILITY.
X
turns°perty re~ 1633- That instead of forwarding to the accounting offi-
ioCsTtoCbeefor!cers °^ ^ne Treasury Department returns of public prop-
urvrd accouSSng er^ intrusted to the possession of officers or agents, the
°tiS9, 1894, v. Quartermabter'^enera^ the Commissary-General of Sub-
28, p. 47. sistence, the Surgeon-General, the Chief of Engineers, the
Chief of Ordnance, the Chief Signal Officer, the Paymaster-
General of the Navy, the Commissioner of Indian Affairs,
or other like chief officers in any Department, by, through,
or under whom stores, supplies, and other public property
are received for distribution, or whose duty it is to receive
or examine returns of such property, shall certify to the
proper accounting officer of the Treasury Department, for
debiting on the proper account, any charge against any
officer or agent intrusted with public property, arising from
any loss, accruing by his fault, to the Government as to
the property so intrusted to him.2 Sec. 1, act of March
29, 1894(28 Stat. Z., 47).
a view to its publication and sale by him on his private account. Dig. Opin. J. A.G.,
par. 2090.
Temporary buildings only erected by military orders on land of the United States
at a military post, to serve a temporary purpose, are in general personal property of
the United States which may be removed by the direction or authority of the Sec-
retary of War. (a) But if the same be permanent structures and real estate, the
authority of Congress is necessary to their removal. Ibid., par. 2098.
1 Under existing laws and regulations there is no system of fiscal accountability
to regimental commanders for property belonging to the United States. For statu-
tory provisions respecting such accountability see the title Property Accountability.
2 The effect of the above statute was to divest the Auditor of the jurisdiction there-
tofore possessed by him over the property accounts and transactions of officers of
the Navy (and War) Department, and to relieve him of all responsibility in relation
to the disposition of property intrusted to said officers, except in cases \\h' re the
officer " whose duty it is to receive or examine returns of such property shall certify
to the proper accounting officer of the Treasury Department (the Auditor), for deb-
iting on the proper account any charge against any officer or agent intrusted with
public property, arising from any loss, accruing by his fault, to the Government as
to the property so intrusted to him."
Under this act the duty and responsibility of determining questions relating to the
correct disposition or loss of property in the Marine Corps have been transferred to
and vested in the proper officer of the Navy Department, and it seems clear that the
Auditor will have no authority over or in relation to the property mentioned in the
cash voucher evidencing the purchase of forage under consideration until he has
been furnished with a certificate required by section 1 of said act.
Jurisdiction over property accounts can not be given to the Auditor by injecting
aBut such buildings can not be sold without the authority of Congress. Lear v. U. S., 50 Fed.
'ep., 65.
MILITARY LAWS OF THE UNITED STATES. 629
1634. That said certificate shall set forth the condition of
such officer's or agent's property returns, that it includes Sec- 2> ibid-
all charges made up to its date and not previously certified,
that he has had a reasonable opportunity to be heard and
has not been relieved of responsibility; the effect of such
certificate, when received, shall be the same as if the facts
therein set forth had been ascertained by the accounting
officers of the Treasury Department in accounting. Sec.
2, ibid.
1635. That the manner of making property returns to or Methods of
J making returns,
in any administrative bureau or department, or of ascer-
taming liability for property, under existing laws and
regulations, shall not be affected by this act, except as
provided in section one; but in all cases arising as to such
property so intrusted the officer or agent shall have an
opportunity to relieve himself from liability. l Sec. 3, ibid.
1636. The heads of the several Departments are hereby
empowered to make and enforce regulations to carry outments-
the provisions of this act. All laws or parts of laws incon-
sistent with the provisions of this act are hereby repealed.2
Sees. 5 and 6", ibid.
DEFICIENCY IN, AND DAMAGE TO, PUBLIC PROPERTY.
Par.
1639. Administration of oaths.
1640. Accounts of company commanders.
Par.
1637. Deficiencies.
1638. Damage to arms, etc.
1637. In case of deficiency of any article of military
supplies, on final settlements of the accounts of any officer 7|es^
chargrd with the issue of the same, the value thereof shall
papers into cash accounts tending to show what disposition has been made of the
property. Such evidence may well be excluded from the cash accounts, and the
responsibility for determining questions relating to property accountability be left
where it belongs, where the law has placed it. II Compt. Dec., 264, 267, 268; IV
ibid., 422.
In the case of Isaac W. Patrick, Indian agent at the Great Nemaha Agency, upon
a suit to recover on his bond for public property alleged to have been unaccounted
for, such failure to account having been shown to be due to clerical errors, it was
held by the circuit court of appeals for the Eighth circuit, in March, 1896, that "a
Government agent is not to be held liable for property still in the possession of the
agency and which has never been lost, merely because a careless clerk, appointed
by the Government itself to keep the accounts of the agent, has omitted it from the
return which he is required to make." U. S. v. Patrick (73 Fed. Rep., 800).
The failure of an Indian agent, through clerical errors, to include in his accounts
property which, in fact, remains at the agency, and which is not lost to the Govern-
ment, does not entitle the United States to recover the value thereof in a suit on his
bond; and he may show these facts in defense. The technical failure to account
would authorize a recovery of no more than nominal damages. Ibid.
Section 12 of the act of July 31, 1894 (28 Stat. L., 208), requiring certain quarterly
accounts to be rendered within twenty days after the expiration of the quarter to
which they relate, has no application to property returns, the rendition of which is
regulated by the act of March 29, 1894. Ill ibid., 422.
2 For regulations prepared and promulgated by the Secretary of War in execution
of the above enactment, see paragraphs 739-807, Army Regulations of 1901.
630 MILITARY LAWS OF THE UNITED STATE8.
be charged against the delinquent and deducted from his
monthly pay, unless he shall show to the satisfaction of the
Secretary of War, by one or more depositions setting forth
the circumstances of the case, that said deficiency was not
occasioned by any fault on his part. And in case of damage
to any military supplies, the value of such damage shall be
charged against such officer and deducted from his monthly
pay, unless he shall, in like manner, show that such damage
was not occasioned by any fault on his part.1
annsmage to 1638. The cost of repairs or damages done to arms, equip-
ss^'v's1?6^'111611^8' or implements shall be deducted from the pay of
sec.ises, B.S. an officer or soldier in whose care or use the same were
when such damages occurred, if said damages were occa-
sioned by the abuse or negligence of said officer or soldier.
ofAdo?thsis?ntia°cn 1639' The Secretary of War is authorized to detail one
COMarinf'i865 c or more °^ the employees of the War Department for
TJ^S. 25, V. is,' p. the purpose of administering the oaths required by law in
sec. 225, B. s. the settlement of officers' accounts for clothing, camp and
garrison equipage, quartermaster's stores, and ordnance,
which oaths shall be administered without expense to the
parties taking them.
compaSy ncom- 1640> ^n settling the accounts of the commanding offi-
mFeb627 1877 v cer °^ a comPany f or clothing and other military supplies,
19sec^225 B s ^e affidavit of any such officer may be received to show
the loss of vouchers or company books, or any matter or
circumstance tending to prove that any apparent deficiency
was occasioned by unavoidable accident or lost in actual
service, without any fault on his part, or that the whole or
any part of such clothing and supplies had been properly
and legally used and appropriated; and such affidavit may
be considered as evidence to establish the facts set forth,
with or without other evidence, as may seem to the Secre-
tary of War just and proper under the circumstances of
the case.2
1 See paragraph 697, Army Regulations of 1895.
2 Causes of damage to, and of loss and destruction of, military property are classi-
fied as follows:
(1) Unavoidable causes, being those over which the responsible officers nave no
control, occurring (a) in the ordinary course of service, or (b) as incident to an active
campaign.
(2) Avoidable causes, being those due to carelessness, willfulness, or neglect. Par.
763, A. R., 1901.
Officers responsible for property will be charged for any damage to, or loss or
destruction of the same, and the money value deducted from their monthly pay,
unless they show, to the satisfaction of the Secretary of War, by their own affidavits
or certificates or by one or more depositions, that the damage, loss, or destruction
was occasioned by unavoidable causes, and without .fault or neglect on their part
Par. 764, ibid.
The proper officers to administer oaths in the administration of the affairs of the
MILITAKY LAWS OF THE UNITED STATES. 631
DISPOSITION OF DAMAGED OR UNSUITABLE PROPERTY.
1641. The President may cause to be sold any military
stores which, upon proper inspection or survey, appear to p3-^- 1( 2> v- 4>
be damaged, or unsuitable for the public service. Such sec. 1241, B.S.
inspection or survey shall be made by officers designated
by the Secretary of War, and the sales shall be made under
regulations prescribed by him.1
Army (except when otherwise specially provided) are judge-advocates of depart-
•ments, judge-advocates of courts-martial, and trial officers of summary courts, and,
in tne cases of boards of survey, the recorder, or, if there be no recorder, the presi-
dent thereof. When none of these aro within reach and available, recourse must be
had to a notary public or other civil officer competent to administer oaths for general
purposes. Par. 765, ibid.
If an article of public property be lost or damaged by the neglect or fault of any
officer or soldier, he shall pay the value thereof, or the' cost ol repairs, at such rates
as a board of survey may determine. Par. 766, ibid.
The amount charged against an enlisted man on the muster and pay rolls on account
of loss or damage of or repairs to Government property shall not exceed the value of
the article or cost of repairs; and such charge will only be made on conclusive proof ,
and never without an inquiry, if the soldier demand it. He will be informed at the
time of signing the pay rolls that his signature will be regarded as an acknowledg-
ment of the justice of the charge. Par. 767, ibid.
When a deserter carries away public property, or when such property is lost
through his desertion, its value will be determined by a board of survey and charged
against him on the next muster and pay rolls. Par. 768, ibid.
If articles of public property are embezzled, or lost or damaged through neglect,
by a civilian employee, the value or damage as ascertained (and by a board of survey
if necessary) shall be charged to him and set against any pay or money due him.
Par. 769, ibid.
For provisions respecting boards of survey, see paragraphs 790-807, ibid.
xThe word "unsuitable," as used in sec. 1241, Rev. Sts., evidently refers to some
unfitness for use other than that caused by being "damaged." Uniform clothing,
for instance, of sizes that could not be used would be unsuitable. But held that the
meaning of the word^ could not properly be restricted to things of a quality inferior
to that which is required for the service. A thing may be unsuitable by reason of
its being of such superior quality as not to be adaptable for the purpose for which it
was intended. And held that military stores can not properly be deemed unsuitable
under this statute for the sole reason that they are in excess of the quantity required
for use. Dig. Opin. J. A. G., par. 2279.
For other statutes authorizing the sale of obsolete and unsuitable property, see the
chapters entitled THE ORDNANCE DEPARTMENT and THE PUBLIC LANDS. For provi-
sions respecting the disposition of funds arising from the sale of public property or
stores, see the chapters entitled THE PUBLIC MONEYS, THE STAFF DEPARTMENTS, and
THE ORDNANCE AND SUBSISTENCE DEPARTMENTS.
Unserviceable public property can only be disposed of by sale according to the
provisions of sections 1241, 3618, Revised Statutes. It can not be exchanged for
other property not belonging to the United States. Thus, held that an old and use-
less printing press, the property of the United States, could not be disposed of by
exchanging it for certain new property belonging to a regiment. Ibid., par. 2103.
Held that, in the absence of specific authority from Congress, the Secretary of War
would not be empowered to sell to a State, for the use of its militia, an amount of
clothing in excess of the State's quota as already appropriated. And held that, with-
out such authority, he would not be empowered to exchange Government property
for property owned or possessed by a State; thus, that he could not legally deliver
to the State of Pennsylvania certain arms, the property of the United States, in
exchange for arms formerly issued to the State for the use of its militia, and in which
the State had a qualified property. Ibid., par. 2104.
Held that under section 1241, Revised Statutes, unserviceable tools and materials,
which had been in use at a national cemetery, could not legally be ordered to be
sold upon the mere inspection and report of their unserviceableness made by the
superintendent of the cemetery, but that, a? required in the section, there must be
632
MILITARY LAWS OF THE UNITED STATES.
Par.
OFFENSES AGAINST PUBLIC PROPERTY.
Par.
1646. Sale, barter, exchange, etc.
1647. Losing, spoiling arms, etc.
1648. Selling ammunition.
1649. Selling, losing, horse, arms, etc.
1642. Embezzlement, stealing, etc.
1643. Receiving stolen property.
1644. Wrongful conversion.
1645. Kobbery, larceny, etc.
st?aHnZZlet?' 1642. Any person who shall embezzle, steal, or purloin
statesUdeemedany money> property, record, voucher, or valuable thing
felMar;3pi875Uv' whatever, of the moneys, goods, chattels, records, or
is, p. 479. property of the United States, shall be deemed guilty of
felony, and on conviction thereof before the district or
circuit court of the United States in the district wherein
said offense may have been committed, or into which he
shall carry or have in possession of said property so
embezzled, stolen, or purloined, shall be punished therefor
by imprisonment at hard labor in the penitentiary not
exceeding five years, or by a fine not exceeding five thou-
sand dollars, or both, at the discretion of the court befoie
which he shall be convicted. Act of March 3, 1875 (18
Stat. Z., 479}.
Knowingly re- 1643. If any person shall receive, conceal, or aid in con-
ceiving, conceal- J J . . . .' .
ing, etc., stolen, cealmg, or have, or retain in his possession with intent
etc., property of . .
the united to convert to nis own use or gain, any money, property,
States; penalty. fe ' ,, £ ,?
sec. 2, ibid, record, voucher, or valuable thing whatever, of the
moneys, goods, chattels, records, or property of the United
States, which has theretofore been embezzled, stolen, or
purloined from the United States by any other person,
first an inspection "by an officer (i. e., commissioned officer) designated by the
Secretary of War. " Ibid., par. 2281.
In view of the general authority vested in the President and Secretary of War by
the provision, in regard to the sale of military stores damaged or unsuitable for the
public service, of the act of March 3, 1825 (now contained in section 1241, Revised
Statutes), held that such stores might legally be sold on credit, if such mode of dis-
position was deemed for the public interest. Ibid., par. 2277.
Held that an officer of the Army, duly charged with the duty of making a sale of
damaged, etc., medical supplies under the authority of section 1241, Revised Statutes
(by which the President is empowered to order such sales in certain cases), could
not lawfully be required to take out and pay for a license as a merchant under the
laws of the State in which the sale was to be made. Such a requirement would be a
restriction upon the regular and legal execution of the powers of the General Gov-
ernment, and therefore beyond the authority of a State. Ibid. , par. 2278.
Held that a noncommissioned officer, who acted as auctioneer at a public sale of
condemned quartermaster stores, could not legally be paid, out of the proceeds of
the sale, a commission of ten per cent, or any other commission or compensation, for
his services as auctioneer. The pay and allowances of all enlisted men are fixed by
law, and, in the absence of any authority in the statute providing for such sales or
other statutory provision, such a compensation must necessarily be without legal
sanction. But held that a civilian employee hired by the Quartermaster's Depart-
ment, under the provision for "hire of teamsters and other employees" in the
appropriation for "transportation of the Army and its supplies," whose pay is not
fixed by "law or regulations," may legally be paid for services as an auctioneer at a
public sale of condemned quartermaster property. Ibid., par. 2284.
MILITARY LAWS OF THE UNITED STATES. 633
knowing the same to have been so embezzled, stolen, or
purloined, such person shall, on conviction before the
circuit or district court of the United States in the district
wherein he may have such property, be punished by a fine
not exceeding five thousand dollars, or imprisonment at
hard labor in the penitentiary not exceeding five years,
one or both," at the discretion of the court before which
he shall be convicted; and such receiver may be tried either b<May be t,ned
before or after the conviction of the principal felon, but convict ion of
if the party has been convicted, then the judgment against
him shall be conclusive evidence in the prosecution against
such receiver that the property of the United States
therein described has been embezzled, stolen, or purloined.
Sec. 2, ibid.
1644. And any officer connected with, or employed in, ^Embezzlement,
the internal-revenue service of the United States, and any version.^ ^ ^
assistant of such officer, who shall embezzle or wrongfully P. m
. Sec. 54y7,K.».
convert to his own use any money or property which may
have come into his possession or under his control in the
execution of such office or employment, or under color or
claim of authority as such officer or assistant, whether
the same shall be the money or property of the United
States or of some other person or party, shall, where the
offense is not otherwise punishable by some statute of
the United States, be punished by a fine equal to the value
of the money and property thus embezzled or converted,
or by imprisonment not less than three months nor more
than ten years, or by both such fine and imprisonment.1
Act of February 3, 1879 (00 8tat. Z., 280).
1645. Every person who robs another of any kind or
description of personal property belonging to the United j^n
States, or feloniously takes and carries away the same,
shall be punished by a fine of not more than five thousand Sec.5466,R.s.
dollars, or by imprisonment at hard labor not less than
one nor more than ten years, or by both such fine and
imprisonment.
1646. The clothes, arms, military outfits, and accouter- e^\t bci0rthes
ments furnished by the United States to any soldier shall arg^.' 374*8 R s
not be sold, bartered, exchanged, pledged, loaned, or given
away; and no person, not a soldier or duly authorized offi-
cer of the United States, who has possession of any such
clothes, arms, military outfits, or accouterments so fur-
1 For embezzlement and other offenses against the public property, see the 60th
Article of War and the title Disbursing officers in the Chapter entitled THE STAFF
DEPARTMENTS.
634 MILITARY LAWS OF THE UNITED STATES.
nished, and which have been the subjects of any such
barter, exchange, pledge, loan, or gift, shall have any
right, title, or interest therein, but the same may be seized
and taken wherever found by any officer of the United
States, civil or military, and shall thereupon be delivered
to any quartermaster or other officer authorized to receive
the same. The possession of any such clothes, arms, mili-
tary outfits, or accoutorments by any person not a soldier
or officer of the United States shall be presumptive evi-
dence of such a sale, barter, exchange, pledge, loan, or
gift.1
in^°ltegmin?ary 1647> Al1^ °fficer wno? willfully or through neglect, suf-
8ti6Art of war ^ers ^° ^e ^os^' 8P°iled, or damaged any military stores
belonging to the United States, shall make good the loss
or damage, and be dismissed from the service. Fifteenth
Article of War.
nitioning ammu" 1648. Any enlisted man who sells or willfully or through
i6Art.of war. neglect wastes the ammunition delivered out to him shall
be punished as a court-martial may direct. Sixteenth
Article of War.
horse1 arms etc'' 1649. Any soldier who sells or through neglect loses or
u Art. of war. spoils his horse, arms, clothing, or accouterments shall be
punished as a court-martial may adjudge, subject to such
limitation ns may be prescribed by the President by virtue
of the power vested in him. Seventeenth Article of War.
Act July 27, 189% (27 Stat. L., 277).
1 See also section 1242, Revised Statutes.
Held, that the provisions of section 23 of the act of March 3, 1863, prohibiting the
sale, etc., of their arms, etc., by soldiers, and declaring that no right of property or
possession should be acquired thereby, etc., were not limited in their operation to the
period of the war, but were still in force, (a) and that an officer of the Army would
therefore be authorized to seize arms, etc., disposed of contrary to such prohibition,
whenever and wherever found. But inasmuch as there have been sundry author-
ized sales of arms and other ordnance stores since the end of the war; Advised, that
officers, before making seizures, should assure themselves that the parties in posses-
sion have not acquired title in a legal manner. Dig. Opin. J. A. G., par. 2273. See
as to method of recovery, par. 2275, ibid.
A person who illegally purchases army clothing from a soldier can not now be
proceeded against for merely purchasing or receiving, under the existing law (sees.
1242 and 3748, Eev. Stat.), but if, in so purchasing, he aids a soldier to desert, he is
subject to trial and punishment under section 5455, Eevised Statutes. Ibid. p. 2274.
a See these provisions as now incorporated in the Revised Statutes, in sections 1242 and 3748. The
further provision of the original act making punishable with fine and imprisonment persons pur-
chasing from soldiers their arms, equipments, clothing, etc., has not been retained in the Revised
Statutes.
CHAPTER
THE MILITIA— THE MILITIA OF THE DISTRICT OF
COLUMBIA— THE TERRITORIAL MILITIA.
THE MILITIA.
Par.
1650-1655.
1656-1661.
1662-1663.
1664-1668.
1669-1674.
1675-1678.
1679-1680.
Composition and enrollment.
Organization.
Instruction and discipline.
Returns.
Active service of the militia.
Field organization.
Expenses of enrollment.
Par.
1681-1684.
1685-1687.
1688-1690.
1691-1706.
1707-1776.
Pay, rations, etc.
Half pay, pension, etc.
Courts-martial, fines, etc.
Armament and equipment.
The militia of the District of
Columbia.
1777-1781. The Territorial militia.
COMPOSITION AND ENROLLMENT.
Par.
1653. Notice of enrollment.
1654. Arms and accouterments.
1655. Exemptions.
Constl"
Par.
1650. The militia.
1651. Who liable to enrollment.
1652. Enrollment by captains.
1650. A well regulated militia, being necessary to the
security of a free State, the right of the people to keep
and bear arms shall not be infringed.1 Constitution of
the United States., second amendment.
1 The right to bear arms is not granted by the Constitution; neither is it in any
manner dependent upon that instrument for its existence. The second amendment
means no more than that it shall not be infringed by Congress, and has no other
effect than to restrict the powers of the National Government. U. S. v. Cruikshank,
92 U. S., 542.
The right voluntarily to associate together as a military company or organization,
or to drill or parade with arms, without and independent of an act of Congress or
law of the State authorizing the same, is not an attribute of national citizenship.
Military organization and military drill and parade under arms are subjects espe-
cially under the control of the government of every country. They can not be claimed
as a right independent of law. Under our political system they are subject to the
regulation and control of the State and Federal governments, acting in due regard
to their respective prerogatives and powers. The Constitution and laws of the United
States will be searched in vain for any support to the view that these rights are
privileges and immunities of citizens of the United States, independent of some spe-
cific legislation on the subject. It can not be successfully questioned that the State
governments, unless restrained by their own constitutions, have the power to regu-
late or prohibit associations and meetings of the people, except in the case of peace-
able assemblies to perform the duties or exercise the privileges of citizens of the
United States; and have also the power to control and regulate the organization,
drilling, and parading of military bodies and associations, except when such bodies
or associations are authorized by the militia laws of the United States. The exercise
of this power, by the States, is necessary to the public peace, safety, and good order.
To deny the power would be to deny the right of the State to disperse assemblages
organized for sedition and treason, and the right to suppress armed mobs bent on
riot and rapine. Presser v. Illinois, 116 U. S., 252, 267; U. S. v. Cruikshank, 92
U. S., 542; New York v. Miln, 11 Pet., 102, 139.
635
636 MILITARY LAWS OF THE UNITED STATES.
ron?d° V^the 1651. Every able-bodied male citizen of the respective
mMay8, 1792, c. States, resident therein, who is of the age of eighteen
July V'i86227c;years' an(^ un(ler the age of forty -five years, shall be en-
sl^M^/ik'^Ued in the militia.
c. 145, s. 6, v. 14, p. 423. Houston v. Moore, 5 Wh., 1. Sec. 1625, K. S.
whS£?lmentfby 1652< It; sna11 be the duty of every captain or command-
ss^fv'i1?9!?!' m£ officer of a company to enroll every such citizen resid-
sec. lose, u.s. 'lng wjthin the hounds of his company, and all those who
may, from time to time, arrive at the age of eighteen years,
or who, being of the age of eighteen years and under the
age of forty -five years, come to reside within his bounds.
Notice of en- 1653. Each captain or commanding officer shall, without
rollment.
Mays, 1792, c. delay, notify every such citizen of his enrollment, by a
Mar. 2, 1803, C.15J proper non-commissioned officer of his company, who may
s. 2, v. 2, p. 207. r . . T . .
Sec. 1627, K.S. prove the notice. And any notice or warning to a citizen
enrolled, to attend a company, battalion, or regimental
muster, which is according to the laws of the State in which
it is given for that purpose, shall be deemed a legal notice
of his enrollment.
Arms and ac- 1654. Every citizen shall, after notice of his enrollment,
couterments. . . '
May s, 1792, c. be constantly provided with a good musket or firelock of a
Mar. 2, 1803, c. is,' bore sufficient for balls of the eighteenth part of a pound,
'seci I'esis, B.S. a sufficient bayonet and belt, two spare flints, and a knap-
sack, a pouch with a box therein to contain not less than
twenty-four cartridges, suited to the bore of his musket or
firelock, each cartridge to contain a proper quantit}7 of
powder and ball; or with a good rifle, knapsack, shot-
pouch and powder-horn, twenty balls suited to the bore of
his rifle, and a quarter of a pound of powder; and shall
appear, so armed, accoutered, and provided when called
out to exercise, or into service, except that when called out
on company days to exercise only he may appear without
a knapsack. And all arms, ammunition, and accouterments
so provided and required shall be held exempted from all
suits, distresses, executions, or sales for debt or for the
payment of taxes. Each commissioned officer shall be
armed with a sword or hanger and spontoon.
EXEMPTIONS.
persons ex- 1655. The Vice-President of the United States; the
May s, 1792, c. officers judicial and executive of the Government of the
qo o O v 1 T)
272; ka'y 7, i8oo', United States; the members of both Houses of Congress,
62; Apr. 3(T i8io; and their respective officers; all custom-house officers with
c. 37, s. 33, v. 2, . ... IT- ,1
P. 603. their clerks; all postmasters and persons employed in the
Sec. 1629,B.S. ' 'in* i j
transportation of the mail; all ferrymen employed at any
MILITAEY LAWS OF THE UNITED STATES. 637
ferry on post-roads; all inspectors of exports; all artifi-
cers and workmen employed in the armories and arsenals
of the United States; all pilots; all mariners actually em-
ployed in the sea-service of any citizen or merchant within
the United States; and all persons who now are or may
hereafter be exempted by the laws of the respective States,
shall be exempted from militia duty, notwithstanding
their being above the age of eighteen, and under the age
of forty -five years.
Par.
ORGANIZATION.
Par.
1656. Divisions and brigades.
1657. How officered.
1658. Rank of officers.
1659. Artillery and cavalry.
1660. Regimental colors.
1661. Privileges of corps.
1656. The militia of each State shall be arranged into
divisions, brigades, regiments, battalions, and companies, brjfjye|; J c.
as the legislature of the State may direct. Each brigade p^8- 3> v- l> p-
may consist of four regiments; each regiment of two bat- Sec. i630,R.s.
talions; each battalion of five companies; each company of
sixty-four privates. Each division, brigade, and regiment
shall be numbered at the formation thereof ; and a record
of such numbers shall be made in the adjutant-general's
office of the State. When in the field, or in service in the
State, each division, brigade, and regiment shall respec-
tivety take rank according to its number, reckoning the
first or lowest number highest in rank.1
1657. The militia shall be officered by the respectiye ofjg™$' how
States as follows: To the militia of each State, one quarter- jjfJJ^JM
master-general; to each division, one major-general, two ^-2,1803,^15,
aids-de-camp with the rank of major, one division inspector ^P^ 1| ™^gf
with the rank of lieutenant-colonel, and one division £.i>r. J°« 1?J6- c-
o'i, v. o, p. /yo.
quartermaster with the rank of major; to each brigade, sec. IGSI, K.S.
one brigadier-general, one brigade inspector, to serve also
as brigade major with the rank of major, one quarter-
master of brigade with the rank of captain, and one aid-
de-camp with the rank of captain; to each regiment of two
battalions, one colonel, one lieutenant-colonel, one major,
and one chaplain; to only one battalion, a major, who shall
command the same; to each company, one captain, one
lieutenant, one ensign, four sergeants, four corporals, one
drummer, and one fifer or bugler. And there shall be a
regimental staff, to consist of one adjutant and one quarter-
1 For active service organization, see paragraphs 1675 to 1678, post.
638 MILITARY LAWS OF THE UNITED STATES.
master, to rank as lieutenants, one paymaster, one surgeon,
one surgeon's mate, one sergeant-major, one drum major,
and one fife major.1
tak?raenkhowt° 1658- A11 commissioned officers shall take rank accord-
33?Kv.'i!iJz73' m£ t° the date of their commissions; and when two of the
sec. 1638, R.S. game gra(je bear an equal date, their rank shall be deter-
mined by lot to be drawn by them before the commanding
officer of the brigade, regiment, battalion, company, or
detachment.
cavairyery and 1659- There sha11 ^ formed for each battalion at least
33M£y4\17i!' £ one company of grenadiers, light infantry, or riflemen,
c?2iMa2,' v. 28°p' an<* *or ea°k division at least one company of artillery
2°Sec.i632,R.s. and one troop of horse. For each company of artillery
there shall be one captain, two lieutenants, four sergeants,
four corporals, six gunners, six bombardiers, one drum-
mer, and one fifer. The officers shall be armed with a
sword or hanger, a fusee, bayonet, and belt, with a car-
tridge box to contain twelve cartridges; and each private
shall furnish himself with all the equipments of a private
in the infantry, until proper ordnance and field artillery is
provided. For each troop of horse there shall be one cap-
tain, two lieutenants, one cornet, four sergeants, four cor-
porals, one saddler, one farrier, and one trumpeter. The
commissioned officers shall furnish themselves with good
horses of at least fourteen hands and a half high, and shall
be armed with a sword and pair of pistols, the holsters to
be covered with bearskin caps. Each dragoon shall fur-
nish himself with a serviceable horse, at least fourteen
hands and a half high, a good saddle1, bridle, mail pillion,
and valise, holsters, and a breastplate and crupper, a pair
of boots and spurs, a pair of pistols, a saber, and a car-
tridge box, to contain twelve cartridges for pistols. Each
company of artillery and troop of horse shall be formed
of volunteers from the brigade, at the discretion of the
commander in chief of the State, not exceeding one com-
pany of each to a regiment, nor more in number than one-
eleventh part of the infantry, and shall be uniformly
clothed in regimentals, to be furnished at their own
expense; the color and fashion to be determined by the
brigadier commanding the brigade to which the}r belong.
Regimental coi- 1660. Each battalion and regiment shall be provided
33^5 v' i1792273' W^n ^ne State and regimental colors by the field officers,
Sec. less, ii.s. and eacn company with a drum and fife, or bugle horn, by
1 The governor of the State has no power to depose an officer or interfere with the
organization of the regiment to which he belongs after such regiment is accepted
and mustered into the service of the United States. X Opin. Att." Gen., 279.
MILITARY LAWS OF THE UNITED STATES.
639
the commissioned officers of the company, in such manner
as the legislature of the respective States may direct.
1661. All corps of artillery, cavalry, and infantry, now c Jrmiegesg of
existing in any State, which, by any law, custom, or usage 33Msayn8; ^; £
thereof, have not been incorporated with the militia, or27|ec 1641^R s
are not governed by the general regulations thereof, shall
be allowed to retain their accustomed privileges, subject,
nevertheless, to all other duties required by law in like
manner as the other militia.
INSTRUCTION AND DISCIPLINE.
Par.
1662. System of instruction to be pre-
scribed by Congress.
Par.
1663. Brigade inspectors;
ports.
1662. The system of discipline and field exercise which
is ordered to be observed in the different corps of inf an-
try, artillery, and riflemen of the Regular Army shall also
be observed in such corps, respectively, of the militia.1
1663. It shall be the duty of the brigade inspector t&
attend the regimental and battalion meetings of the mili-
tia composing the several brigades during the time when
they are under arms, to inspect their arms, ammunition,
and accouterments, to superintend their exercise and
maneuvers, and introduce throughout the brigade the sys-
tem of military discipline prescribed by law and such
orders as they receive from the commander in chief of the
State; and to make returns to the adjutant-general of the
State at least once in every year of the militia of the bri-
gade to which he belongs, reporting therein the actual
condition of the arms, accouterments, and ammunition of
the several corps and every other particular which, in his
judgment, may relate to their government and the general
advancement of good order and military discipline.
RETURNS.
duties;
re-
of in"
Par.
1664. Adjutants- general; returns of
strength.
1665. The same; arms, accouterments,
etc.
Par.
1666. Returns to the President.
1667. Reports by brigade majors.
1668. Abstract of returns for Congress.
1664. There shall be appointed in each State an adjutant- Adjutant-gen-
eral in each state,
general, whose duty it shall be to distribute all orders from his duty.
1 There is no existing statute of the United States authorizing the President to call
out the militia for drill merely. The Constitution, in empowering Congress " to
provide for organizing, arming, and disciplining the militia," leaves their training
to the States, and it is at least doubtful whether an act of Congress regulating the
drill of the militia would be constitutional. Dig. Opin. J. A. G., par. 1733.
640 MILITARY LAWS OF THE UNITED STATES.
; the commander in chief of the State to the several corps;
i634,B.s. to attend all musters when the commander in chief of the
State reviews the militia, or any part thereof; to obey all
orders from him relative to carrying into execution and
perfecting the system of military discipline established by
law; to furnish blank forms of returns that may be re-
quired, and to explain the principles on which they should
be made; to receive from the several officers of the different
corps throughout the State returns of the militia under
their command; and to make proper abstracts from such
returns and lay the same annually before the commander
in chief of the State.
1665. The several officers of the divisions, brigades, regi-
33,s.6 , v.fi,p.273. ments, and battalions shall report, in their returns of the
Sec. Ju>»>« K.S.
corps under their command, the actual condition of their
arms, accouterments, and ammunition, their delinquencies,
and every other particular relating to the general advance-
ment of good order and discipline, and shall make the same
in the usual manner.
1666. It shall be the duty of the adjutant-general in each
i5^Tl'21803207' State to make return of the militia of the State, with their
sec.' 1636, B.S. arms, accouterments, and ammunition, agreeably to the
provisions of law, to the President of the United States,
annually, on or before the first Monday in January; and
it shall be the duty of the Secretary of War, from time to
time, to give such directions to the adjutants-general of
the militia as may, in his opinion, be necessary to produce
a uniformity in such returns.
s ectof'sdut in 1667. It shall be the duty of the brigade-inspector to
3/saio v i179273' * * * make returns to the adj utant-general of the State,
Sec. 1640, B.S. a^ least once in every year, of the militia of the brigade to
which he belongs, reporting therein the actual condition of
the arms, accouterments, and ammunition of the several
corps, and ever}7 other particular which, in his judgment,
may relate to their government and the general advance-
ment of good order and military discipline.
turabsstrof t adju" 1668- The Secretary of War shall lay before Congress,
statesgeneral °f on or kef ore the first Monday in February of each year,
i5^ai'v2>218°207'an abstract of the returns of the adjutants-general of the
sec. ass, B. s. several States of the militia thereof.
MILITARY LAWS OF THE UNITED STATES. 641
ACTIVE SERVICE OF THE MILITIA.
Par. I Par.
1669. Called fortn by the President. I 1672. Courts-martial, composition.
1670. Apportionment. 1673. Term of service.
1671. Subject to Articles of War. • 1674. Disobedience of orders, penalty.
1669. Whenever the United States are invaded, or are id°$^ °cfafere0Sf
in imminent danger of invasion from any foreign nation or in™°£8- 1795 c
Indian tribe, or of rebellion against the authority of the fj
Government of the United States, it shall be lawful f or
the President to call forth such number of the militia of 25^c> 1645^ K s<
the State or States, most convenient to the place of danger,
or scene of action, as he may deem necessary to repel such
invasion, or to suppress such rebellion, and to issue his
orders for that purpose to such officers of the militia as he
may think proper. 1
1 The President has no original authority over the militia by right of his office. He
can only call them out when Congress provides for his doing so as the agent of the
United States for such purpose. When the call is complied with, the militia becomes
national militia, and he becomes their commander in chief. The law governing his
exercise of power in calling out is found in sections 1642, 5297, 5298, and 5299, Revised
Statutes. Dig. Opin. J. A. G., par. 1724.
The manner of the calling out of the militia by the President under the act of 1795
(sec. 1642, R. S.) , is indicated by the Supreme Court in the leading case of Houston
v. Moore, (a) where it is observed that "the President's orders -may be given to the
chief executive magistrate of the State, or to any militia officer he may think proper."
The call would ordinarily be addressed to the governor, who, in most of the States,
is made commander in chief of the active militia of the State. A further form, indeed,
of calling out the militia, viz, by a conscription, was authorized during the late war,
by the act of July 17, 1862. Ibid., par. 1723.
The calling forth of the militia into the United States service is an administrative
function, a ministerial act, in which the Secretary of War may issue the necessary
orders as the origin of the Executive, and his act is the act of the President. Ibid.,
par. 1725.
The President, in calling out a force of militia, authorized the governor of a State
to designate the particular militia of that State to be included in the call, and the
governor thereupon designated a certain regiment, and formally accepted its service.
Held, that in so doing he acted as the agent of the President and that his acceptance
was in law an acceptance by the President, and was equivalent to a muster in of the
regiment. Ibid., par. 1727.
In 1836 an Indian agent in Indiana applied for assistance, in an emergency, to a
militia colonel, who furnished three companies of his regiment, which were employed
and rendered faithful service for seven days in assisting to execute the laws of the
United States. Upon a claim now (1893) made for compensation for such service,
held that the same could not legally be allowed by the Secretary of War, who could
have no authority to recognize, as in the United States service, militia who had not
been called out by the President or by his direction; and that such claim could be
entertained by Congress alone. Ibid., par. 1728.
In the exercise of its constitutional power "to provide for calling forth the militia,"
and "to provide for organizing" the same, etc., Congress has made no distinction
between any different portions of this force, or recognized any such portion as ' ' National
Guard." The law relating to the subject, Revised Statutes, Title XVI, sections 1625,
1642, etc., contemplates but a single integral body as constituting the militia and as
liable to be called out. Under the existing law, the "National Guard" of a State can
not legally be called out as such. Upon a call, the governor may indeed order them
out, as being organized and available, so far as they will go to make up the number
of the militia required. Ibid., par. 1729.
The United States statutes take no notice of "National Guard" as such. If called
22924—08 - 41
642 MILITARY LAWS OF THE UNITED STATES.
ap^Siedhow 1670< When the militia of more than one State is called
2oiuJyi17v18i6?'p' mto t^le actual service of the United States by the Presi-
69se<- 1648 K s dent, be shall apportion them among such States accord-
ing to representative population.
0 subject to rules ^i. The militia, when called into the actual service of
3(.Fesb-428>v17i5 ' ' the United States for the suppression of rebellion against
and resistance to the laws of the United States, shall be
sukJect to tne same rules and articles of war as the regu-
sec.i644,K.s.iar troops of the United States.
1672- Courts-martial for the trial of militia shall be com-
' Posed of militia officers only.1
424; July 29, 1861, c. 25, s. 5, v. 12, p. 282. Sec. 1668, R.S.
forth entecrmleodf 1673' Whenever the President calls forth the militia of
specified6 to be ^ne States, to be employed in the service of the United
201 "sW^' °' States, he may specify in his call the period for which such
59Se<- 1648 R s seryice w^ ^e required, not exceeding nine months, and
the militia so called shall be mustered in and continued to
serve during the term so specified, unless sooner discharged
by command of the President.
out, it is not as ' ' National Guard, ' ' but as militia; and when so called forth or included
in a call it must be governed by the existing laws providing for the organization,
discipline, etc., of the militia. Ibid., par. 1730.
The "National Guard," so called, being merely militia, can not (where not called
forth) be " supported" or ''maintained" by Congress, which is authorized by the
Constitution to "support" and "maintain" the Army and Navy only. So officers of
the National Guard can not be commissioned by the President without a violation of
the Constitution, which "reserves the appointment of militia officers to the States,
respectively." Ibid., par. 1734.
The act of February 28, 1895 (1 Stat. L., 424), authorizing the President under cer-
tain circumstances to call out the militia, is constitutional, and the President is the
final judge of the emergency justifying such call. This construction necessarily
results from the nature of the power itself and from the manifest object contem-
plated by the act of Congress. The power itself is to be exercised upon sudden
emergencies, upon great occasions of state, and under circumstances which may be
vital to the existence of the Union. A prompt and unhesitating obedience to orders
is indispensable to the complete attainment of the object. The service is a military
service, and the command of a military nature; and in such case every delay and
every obstacle to an efficient and immediate compliance necessarily tend to jeopard
the public interests. Martin v. Mott, 12 Wheat., 19, 30.
Where a power is confided to the President by law the presumption is that in the
exercise of that power he has pursued the law. The existence of an exigency justi-
fying the calling out of the milifia is not traversable and need not be averred. It is
not necessary to set forth the orders of the President; it is sufficient to state that
the call of the governor for the militia was in obedience to them. For disobedience
to a call made by a governor for the militia, in pursuance of the orders of the Presi-
dent, a citizen is liable to be tried by a court-martial organized under the laws of
the United States. Ibid., 33.
In the case of Houston t>. Moore (5 Wheat., 1) , it was decided that although a mili-
tiaman who refused to obey the orders of the President calling him into the public
service was not, in the sense of the act of 1795, "employed in the service of the
United States" so as to be subject to the Rules and Articles of War, yet that he was
liable to be tried for the offense under the fifth section of the same act by a court-
martial called under the authority of the United States,
1 Section 1658, Revised Statutes, prescribes that ' ' courts-martial for the trial of
militia shall be composed of militia officers only." Held that the enactment applied
also in principle to courts of inquiry convened in the militia, and that officers of the
Army could not, for purposes of instruction or assistance, legally be detailed to be
associated with militia officers as members of such courts. Dig. Opin. J. A. G.,
par. 1736.
MILITARY LAWS OF THE UNITED STATES. 643
1674. Every officer, noncommissioned officer, or private
of the militia who fails to obey the orders of the Presi- alg;b ^ 1795 >c
dent when he calls out the militia into the actual service of
the United States shall forfeit of his pay a sum not ex-
ceeding one year's pay, and not less than one month's pay,
to be determined and adjudged by a court-martial; and Moore,
such officer shall be liable to be cashiered by a sentence °f MeaX 'case/i
court-martial, and be incapacitated from holding a com-
mission in the militia for a term not exceeding twelve
months; and such noncommissioned officer and private
shall be liable to imprisonment, by a like sentence, on fail-
ure to pay the fines adjudged against him, for one calen-
dar month for every twenty-five dollars of such fine.
Par.
FIELD ORGANIZATION.
Par.
1677. Brigades, divisions, staff.
1678. Rank of officers.
1675. Organization.
1676. Infantry.
1675. The militia when called into actual service shall
be organized as prescribed in the two sections following. £• |^ s- 2) v< 12>
1676. They shall be formed by the President into regi- J^ffigJ; B. s.
ments of infantry, with the exception of such numbers for c J9uly 222> ^^
cavalry and artillery as he may direct, not to exceed the c69musly3%18rl'
proportion of one company of each of those arms to every j^^c! $1?**\\
regiment of infantry, and to be organized as in the regular Vec.i6464,'R. s.
service. l Each regiment of infantry shall have one colonel,
one lieutenant-colonel, one major, one adjutant (a lieuten-
ant), one quartermaster (a lieutenant), one surgeon and
two assistant surgeons, one sergeant-major, one regimental
quartermaster-sergeant, one regimental commissary-ser-
geant, one hospital steward, and two principal musicians,
and shall be composed of ten companies, each company to
consist of one captain, one first lieutenant, one second
lieutenant, one first sergeant, four sergeants, eight cor-
porals, two musicians, one wagoner, and from sixty-four
to eighty -two privates.
1677. They shall be further organized into divisions of , Brisades. dm-
*^ sions, stftn.
three or more brigades each,2 and each division shall have c 3fy^ 11286^
a major-general, three aids-de-camp, and one assistant ^w^eV^l'
adjutant-general with the rank of major. Each brigade p'Se9c4'1647 B s
shall be composed of four or more regiments and shall
1 For the war organization of the regiment, battalion, troop, battery, and company
of the several arms of the service, seethe acts of April 22, 1898 (30 Stat. L., 361),
April 26, 1898 (ibid., 364), and March 2, 1899 (ibid., 977).
2 For the war organization of brigades, divisions, etc., see the acts of April 22,
1898 (30 Stat. L., 361), April 26, 1898 (ibid., 364), and March 2, 1899 (ibid., 977).
644 MILITARY LAWS OF THE UNITED STATES.
have one brigadier-general, two aids-de-camp, one assist-
ant adjutant-general with the rank of captain, one surgeon,
one assistant quartermaster, one commissary of subsistence,
and sixteen musicians as a band.1
take rank. OA 1678. All commissioned officers shall take rank accord -
33^say8^v.79i2,' p.' ing to the date of their commissions, and when two of the
27|ec.i638,B.s. same grade bear an equal date their rank shall be deter-
mined by lot to be drawn by them before the commanding
officer of the brigade, regiment, battalion, company, or
detachment.
EXPENSES OF ENROLLMENT.
Par. I Par.
1679. Travel allowance. I 1680. Expenses of march to rendezvous.
al 1679. The officers, noncommissioned officers, musicians,
44^a3,l9'5^67.c'artificers? and privates shall be entitled to one day's pay,
sec.i652,R.s. subsistence, and allowances for every twenty miles' travel
from their places of residence to the place of general ren-
dezvous, and from the place of discharge back to their
residence.
marcKrendez- 1680. The expenses incurred by marching the militia of
v°Fet>. 28, 1795, c. anv State or Territory to their places of rendezvous, in
AprV2o*' i8i8?2c.; pursuance of a requisition of the President, or of a call
^slc.i&fji.s. made by the authority of any State or Territory and
approved by him, shall be adjusted and paid in like man-
ner as the expenses incurred after their arrival at such
places of rendezvous, on the requisition of the President;
but this provision does not authorize any species of ex-
penditure, previous to arriving at the place of rendezvous,
which is not provided by existing laws to be paid for after
their arrival at such places of rendezvous.2
*For provisions respecting general staff officers of the militia and volunteer
forces in time of war, see the acts of April 22, 1898 (30 Stat. L., 361); April 26, 1898
(ibid., 364); May 18, 1898 (ibid., 417); June 29, 1898 (ibid., 417); joint resolution
No. 57, July 8, 1898 (ibid., 752), and the act of March 2, 1899 (ibid., 752).
Where militia are called out and mustered into actual service, the staff officers of
their commanding general can not be considered as in any sense appointed by the
Secretary of War or commissioned by the President. Nor are they given the corre-
sponding rank of staff officers of the Regular Army, but their rank remains the same
as it was before in the militia under the State laws. Dig. Opin. J. A. G., par. 1736.
It is not essential for a militia organization that there should be a formal muster in
to bring it into the actual service of the United States. The provision of the act of
1862 relating to the muster in of militia is directory only. Ibid., par. 1726.
There is no existing statute of the United States authorizing the President to call
out the militia for drill merely. The Constitution, in empowering Congress " to pro-
vide for organizing, arming, and disciplining the militia," leaves their training to
the States, and it is at least doubtful whether an act of Congress regulating the drill
of the militia would be constitutional. Ibid., par. 1733.
2 There are no acts of Congress providing pay, rations, and expenses to militia
called out by State or Territorial authority, but disbanded without their having been
employed or mustered into the service of the United States previous to their dis-
missal; such cases, as they have arisen, having been, from time to time, specially
provided for. Ill Opin. Atty. Gen., 528.
MILITARY LAWS OF THE UNITED STATES. 645
PAY, RATIONS, EMOLUMENTS.
Par.
1681. Pay, rations, etc.
1682. Addition to ration.
Par.
1683. Commencement of pay.
1684. Forage and use of horses.
1681. The militia, when called into the actual service of eg
the United States, shall, during their time of service.' be 441, y9' 5? p6'?!
entitled to the same pay, rations, clothing, and camp equi-^1^ ^> Vf611^ £
page as may be provided by law for the Army of the United 28|ec.i65o, B.S.
States.1
1682. When the militia in the military service of the t>dditioa to ra'
United States are employed on the western frontiers, there 9 g^vVp9^'
shall be allowed two ounces of flour or bread, and two s'ec.i655,B.s.
ounces of beef or pork, in addition to each of their rations,
and half a pint of salt, in addition to every hundred of
their rations.
1683. Whenever the militia is called into the actual serv- when Pa? to
commence.
ice of the United States, their pay shall be deemed to Jan- 2. 1795. c-
9 s 3 v 1 D 408
commence from the day of their appearing at the place of 's'ec.i65i,'R.s.
battalion, regimental, or brigade rendezvous.
1684. The officers of all mounted companies in the militia 0fS!IsandU8e
called into service of the United States shall each be enti- 9 ^fg," ?! !i,7p5408;
tied to receive forage, or money in lieu thereof, for two jj^jft.0'
horses when they actually keep private servants, and for kec.i66&,B.s.
one horse when without private servants, and forty cents
per day shall be allowed for the use and risk of each horse,
except horses killed in battle or dying of wounds received
in battle. Each noncommissioned officer, musician, artifi-
cer, and private of such mounted companies shall be enti-
tled to receive forage in kind for one horse, with forty cents
per day for the use and risk thereof, except horses killed in
battle or dying of wounds received in battle, and twenty-
five cents per day in lieu of forage and subsistence when
the same is furnished by himself, or twelve and a half cents
per day for either, as the case may be.
HALF PAY, PENSIONS, ETC.
Par.
1685. Half pay.
1686. Florida war; pensions.
Par.
1687. Care of wounded.
1685. When any officer, noncommissioned officer, artifi- wc
cer, or private of the militia or volunteer corps dies in ^ in
1 For statutes regulating pay and allowances see the chapter entitled THE STAFF
DEPARTMENTS, and the chapters relating to the duties of the several departments of
the staff.
64f) MILITARY LAWS OF THE UNITED STATES.
' c' service of the United States, or in returning to his place
sec.i656, B.S. of residence after being mustered out of service, or at any
time in consequence of wounds received in service, and
leaves a widow, or if no widow, a child or children under
sixteen years of age, such widow, or if no widow, such
child or children, shall be entitled to receive half the
monthly pay to which the deceased was entitled at the
time of his death, during the term of five years; and in
case of the death or intermarriage of such widow before
the expiration of five years, the half pay for the remainder
of the time shall go to the child or children of the dece-
dent. And the Secretary of the Interior shall adopt such
forms of evidence in applications under this section as the
President may prescribe.
volunteers, 1686. The volunteers or militia who have been received
Indian depreda- into the service of the United States to suppress Indian
benefits to. ' depredations in Florida shall be entitled to all the benefits
Mar. 19, 1836, c. *.
44,&4,v.5,p^. which are conferred on persons wounded or otherwise dis-
' abled in the service of the United States.
care of the 1687. If any person, whether officer or soldier, belong-
May s, 1792, c. ing to the militia of any State, and called out into the
sec.'i639,pR.8.' service of the United States, be wounded or disabled while
in actual service, he shall be taken care of and provided
for at the public expense.
COURTS-MARTIAL, FINES, ETC.
Far.
1688. Courts-marshal, composition.
far.
1690. Fines paid into the Treasury.
1 89. Collection of fines.
1688. Courts-martial for the trial of militia shall be com-
5Fse^'y8i179^24-Posed of militia officers only.
July 29,' 1861, c.' 25, s. 5, v. 12, p. 282. Sec. 1658, R.S.
ied> 1689. All fines assessed under the provisions of law con-
cerning the militia or volunteer corps, when called into
the actual service of the United States, shall be certified
>. 12, p. 282. ^ the presiding officer of the court-martial, before whom
Sec. 1659, B.S. £hey are assessed, to the marshal of the district in which
the delinquent presides, or to one of his deputies, aud to
the Comptroller of the Treasury, who shall record the
certificate in a book to be kept for that purpose. The
marshal or his deputy shall forthwith proceed to levy the
fines with costs, by distress and sale of the goods and
chattels of the delinquent, which costs and the manner of
proceeding, with respect to the sale of goods distrained,
shall be agreeable to the laws of the State in which the
MILITARY LAWS OF THE UNITED STATES.
647
same may be in other cases of distress. And where any
noncommissioned officer or private is adjudged to .suffer
imprisonment, there being no goods or chattels to be found
whereof to levy the fines, the marshal of the district or his
deputy shall commit such delinquent to jail, during the
term for which he is so adjudged to imprisonment, or
until the fine is paid, in the same manner as other persons
condemned to fine and imprisonment at the suit of the
United States may be committed.
1690. The marshal shall pay all fines collected by him or
his deputy, under the authority of the preceding section, |tatees.United
into the Treasury of the United States, within two months s/s^v8!™^-,
after he has received the same, deducting five per centum ^ v' ^p6?^
for his compensation, and in case of failure, it shall be the^1^ .^'y^l P.
duty of the Comptroller of the Treasury to give notice to28|eca660^B>s
the district attorney of the United States, who shall pro-
ceed against the marshal in the district court, by attach-
ment, for the recovery of the same.
ARMAMENT AND EQUIPMENT.
Par.
1691. Permanent appropriation.
1692. Appropriation not to lapse.
1693. Apportionment.
1694. Purchases, etc., to be under direc-
tion of the Secretary of War.
1695. Returns of property issued.
1696. Unserviceable arms, etc.
1897. Purchases by States.
1898. Credit of cost; appropriation not to
Par.
1699. The same.
1700. Issues of Springfield breech-load-
ing rifles.
1701. Replacing ordnance.
1702. Distribution of undrawn quotas.
1703. Credits for same.
1704. Inquiry as to disposition of issues
to States.
1705. Issue of heavy guns and mortars.
1706. Restriction on payment of freight.
1691. The sum of one million dollars is hereby annually
appropriated, to be paid out of any money in the Treas-
ury not otherwise appropriated, for the purpose of pro- Ap^^me49?
viding arms, ordnance stores, quartermaster's stores, and *|j: |^ ^. S^P.
camp equipage for issue to the militia. 1 Act of June 6, c^\l^i \f$'
1900 (31 Stdt. L., 662). v.24,P.401; June 6, 1900, v. 31, p. 662. Sec. 166l',R.S.'
1692. The permanent annual appropriation made by the proprS5onntfaopr
act of April twenty- third, eighteen .hundred and eight, nJui h?pseilltia
1 The appropriation for "providing arms and equipments for the whole body of
the militia, either by purchase or manufacture," authorizes the use of the money in
the manufacture of arms at the National Armories. IX Opin. Att. Gen., 16.
The cost of transporting arms and equipments to the points designated by proper
authority for issue to the militia of the several States and Territories and the Dis-
ject of the appropriation
February 12, 1887 (24 Stat-
unless provision is specifi-
cally made therefor. (3 Dig. 2d Comp. Dec., 356.)
648 MILITARY LAWS OF THE UNITED STATES.
liigSs', 1894 v designated as section sixteen hundred and sixty -one of the
28, p. 406. Revised Statutes, and which was increased to four hun-
dred thousand dollars by the act of February twelfth,
eighteen hundred and eighty-seven, being for the procure-
ment of ordnance and ordnance stores and quartermaster's
stores and camp equipage for the use of the militia of the
country, shall not lapse with the end of any fiscal year nor
be turned into the surplus fund, but shall remain a perma-
nent appropriation and be available for the several States
and Territories and District of Columbia until expended
as provided in said acts or otherwise disposed of by Con-
gress.1 Act of August 18, 1894 (28 Stat. L., 406).
meirtportion 1693. Said appropriation shall be apportioned among
v.24bp.4oi. 1901>the several States and Territories, under the direction of
sec.i66i,B.s. fas Secretary of War, according to the number of Sena-
tors and Representatives to which each State respectively
is entitled in the Congress of the United States, and to the
Territories and District of Columbia in such proportion
and under such regulations as the President may prescribe:
states having Provided, however* That no State shall be entitled to the
uniformed mili-
tia on4y, entitled, benefits of the appropriation apportioned to it unless the
number of its regularly enlisted, organized, and uniformed
active militia shall be at least one hundred men for each
Senator and Representative to which such State is entitled
in the Congress of the United States. And the amount of
said appropriation which is thus determined not to be
available shall be covered back into the Treasury.2 Sec.
2, Act of February 12, 1901 (#4, Stat. L., 401).
wSaerCtotad^rect 1694. That the purchase or manufacture of arms, ord-
armrs°etcse ofnance stores, quartermaster's stores, and camp equipage
sec. 3, ibid, f or the militia under the provisions of this act shall be made
1 The States do not, by the existing laws, have an absolute right of property in such
arms, and they derive no authority therefrom to sell or dispose of them at pleasure.
XIV Opin. Att. Gen., 491.
2 The arms transmitted to the States under the laws which are embodied in sections
1661, 1667, and 1670 of the Revised Statutes are, in contemplation of the provisions
thereof, to be held by the States for a specific purpose only, which is pointed out
therein; hence, they become invested with nothing more than a qualified property
in such arms; and they can not, as a matter of right, and without interfering with
t he regulations of Congress on a subject over which its authority is paramount, make
any disposition or use of such arms which defeats the purpose referred to. XIV
Opin. Atty. Gen. 491. Yet those laws make no provision for any accountability to
the United States respecting the disposition of the arms after they are once delivered
to the State authorities, Congress having seen fit to leave it entirely to the good
faith of the States, when the delivery takes place, to carry out the purpose con-
templated in furnishing the same. Ibid. Congress, by the act of February 12, 1887
(24 Stat. L., 401), has provided a system of accountability for the several States in
respect to the arms, ammunition, equipage and other public property issued to the
States for the use of the militia. See paragraphs 1694 and 1700, post.
For provision of the statutes respecting certain special issues of arms and ammuni-
tion to the militia of the States and Territories, see paragraphs 1780 and 1781 post.
MILITARY LAWS OF THE UNITED STATES. 649
under the direction of the Secretary of War, as such arms,
ordnance and quartermaster's stores and camp equipage
are now manufactured or otherwise provided for the use
of the Regular Army,, and they shall be receipted for and
shall remain the property of the United States, and be
annually accounted for by the governors of the States and
Territories, for which purpose the Secretary of War shall
prescribe and supply the necessary blanks and make such
regulations as he may deem necessary to protect the inter-
est of the United States.1 Sec. 3, ibid.
1695. Each State and Territory shall hereafter make an Returns.
„ _ ,r „ , Feb. 24, 1897, s.
annual return to the Secretary of War of all the arms 2, v. 29, p. 592.
issued to them under this or any former Act of Congress,
as provided for in the act of February (twelfth), eighteen
hundred and eighty-seven,2 making a permanent annual
appropriation for arming and equipping the militia. Sec.
2, act of February 24, 1897 (29 Stat. Z., 590).
1696. All arms, equipments, ordnance stores, or tents ^unserviceable
which may become unserviceable or unsuitable shall be 4 ^u|g 18- Jjgj*. 8-
examined by a board of officers of the militia, and its
report shall be forwarded by the governor of the State or
Territory direct to the Secretary of War> who shall direct
what disposition, by sale or otherwise, shall be made of
them; and, if sold, the proceeds of such sale shall be cov-
ered into the Treasury of the United States. Sec. 4, act of
August 18, 1894 (88 Stat. Z., 406).
1697. Any State or Territory may, in addition to the j^kf?^ s
stores and supplies issued under the provisions of this act3- v. 29, P. 592.'
and the act of February (twelfth), eighteen hundred and
eighty-seven, purchase for the use of its National Guard or
reserve militia, at regulation prices for cash at place of
sale, such stores and supplies from any department of the
Army as, in the opinion of the Secretary of War, can be
spared.3 Sec. 3, act of February $4, 1897 (29 Stat. L. , 592).
1698. The cost of all stores and supplies sold to any credit of cost,
State or Territory under section three of the act approved Mar. 15, isgs,
February twenty-fourth, eighteen hundred and ninety-
seven, shall be credited to the appropriation from which
they were procured, and remain available to procure like
stores and supplies for the Army in lieu of those sold as
aforesaid. Act of March 15, 1898 (30 Stat. Z., 326).
^ee section 2, act of Feb. 12, 1887 (24 Stat. L., 401), par. 1693, ante.
2 Section 1661, Revised Statutes, paragraph 1693, ante.
3 The proceeds of such sales must be covered into the Treasury as miscellaneous
receipts. Compt. Dec., Aug. 22, 1900 (Circular 30, A. G. O., 1900); see, also, IV
Compt. Dec., 688; v. ibid., 229, 230.
650 MILITARY LAWS OF THE UNITED STATKS.
1699' The (>()st to the Ordnance Department of all
' ol'dnance and ordnance stores issued to tin* States, Terri-
tories, and District of Columbia, under (lie act of Feb-
ruary twelfth, eighteen hundred and eighty -seven, shall be
credited to the appropriation for k* manufacture of arms
at national armories," which appropriation for eighteen
hundred and eighty-nine and thereafter shall be available
until exhausted. Act of September 88, 1888 (25 Stat. L.,
sp"?is£|f8ie?df 1700< ^ke Secretary of War is hereby authorized to issue
rifleeschto° state? ^° governors of the several States and Territories sueli
etFeb 25 189? v numDer °f Springfield breech-loading rifles, caliber fort y-
29, p. 592. five one-hundredths of an inch, as are now required for
arming all of the regularly organized armed and equipped
militia .(generally known as the National Guard) of each
State and Territory that are not already supplied with this
arm: Provided, That each Suite or Territory be required
on receipt of the new arms to turn in to the Ordnance De-
partment, United States Army (without receiving any
money credit therefor), an equal number of the arms now in
its possession, except its Springfield rifles, caliber forty-
five one-hundredths of an inch. Act of February %4> 1897
(29 Stat. L.,592).
nancelau£xiOIin l^Ol. ^n application of the governor of any State or
w™ wi.lh ,Sl«,lin Territory the Secretary of War is authorized to replace
Mar. 6, loyy, v. • • « i
so, p. 1073. the ordnance and ordnance stores which the volunteers
from said State or Territory carried into service of the
United States Army during the recent war with Spain, and
which have been retained by the United States. Act of
March 3, 1899 (30 Stat. L., 1073.)
steteswhicSad 1702- The Secretary of War is authorized and directed
their quote from to distribute, to such States as did not receive the same,
18Ma?. 3 JHJTS, c. their properquota of arms and military equipments foreach
^eiie&BiiLS. vear> from eighteen hundred and sixty-two to eighteen
hundred and sixty-nine, under the provisions of section
sixteen hundred and sixty: Provided, That in the organiza-
tion and equipment of military companies and organizations
with such arms no discrimination shall be made between
companies and organizations on account of race, color, or
former condition of servitude.
to e states 1703. All issues of arms and other ordnance stores which
betU5?SS?i!were made ^ the War l^l^i'lment to the States and Ter-
iNi-.' ami used to ritories between the tirst day of January, eighteen hundred
i!onpress rebel~and sixty -one, and the ninth day of April, eighteen hun-
1808, c. 55, v. 2, dred and sixty -five, under the act of April twenty-third,
MILITARY LAWS OF THE UNITED STATES. 651
eighteen hundred and eight, and charged to the States and v/HfrSJffit
Territories, having been made for the maintenance and
preservation of the Union, and properly chargeable to the
United States, the Secretary of War is hereby authorized,
upon a proper showing by such States of the faithful dis-
position of said arms and ordnance stores in the service
of the United States in the suppression of the war of the
rebellion, to credit the several States and Territories with e credit to states,
the sum charged to them, respectively, for arms and other
ordnance stores which were issued to them between the
aforementioned dates, and charged against their quotas
under the law for arming and equipping the militia.1
Sec. 3, act of March 3, 1875 (18 Stat. Z., 456).
1704. It shall be the duty of the Secretary of War,
before making a credit to any of said States and Terri-
tories, to investigate and ascertain, so nearly as he can,
the disposition made by each of said States and Territories
of said arms and ordnance stores; and if he shall find that
any of said arms or ordnance stores have been sold or
otherwise misapplied, to refuse a credit to such State or
Territory for so much of said arms and ordnance stores as
have been sold or misapplied; and the amount thereof
shall remain a charge against said State or Territory, the
same as if this act had not been passed.2 Ibid.
1705. The Secretary of War is hereby authorized, at iyj*£« ^ p^:
his discretion, to issue, on the requisition of the governor |jrctillejy drneiavy
of a State bordering on the sea or Gulf coast, and having 18||^V. 22^0?'
a permanent camping ground for the encampment of
the militia not less than six days annually, two heavy
guns and four mortars, with carriages and platforms, if
lrThe act of March 3, 1875 (18 Stat. L., 455), authorized the Secretary of War to
credit the several States and Territories with arms drawn by them between January
1, 1861, and April 23, 1868, and not sold or otherwise misapplied, or used for the pur-
chase of arms to be distributed to the States in rebellion. The act of March 3, 1887
(24 Stat. L., 551), repealed so much of the act of March 3, 1875, as required the
unexpended balances of the appropriations for the purchase of arms for distribution
to the States in rebellion to be covered into the Treasury. *
2 By several statutes special authority is conferred upon the Secretary of War to
adjust the accounts of particular States and Territories for issues of arms and muni-
tions of war. For such provisions as to the State of Kansas, see the acts of August
15, 1876 (19 Stat. L., 206); July 28, 1886 (24 Stat. L., 159); as to the Territory of
Montana, see the act of February 15, 1887 (24 Stat. L., 404); as to the Territory of
Dakota, see the act of February 28, 1887 (24 Stat, L., 432) ; as to the State of Wash-
ington, see the act of June 10, 1890 (26 Stat. L., 130) ; as to the State of Colorado, see
the act of August 4, 1886 (24 Stat. L., 219). The act of January 16, 1889 (25 Stat. L.,
646), authorized the Secretary of War to issue additional arms and military stores to
the Territory of Montana; the same statute authorized a similar issue to the State of
Oregon. The joint resolution of June 7, 1878 (20 Stat. L., 252), authorized the issue
of 1,000 stand of arms, with 50 cartridges to each, to each of the Territories, in addi-
tion to those already authorized by law. See also the title "Arms, Armories, and
Arsenals," in the chapter entitled THE ORDNANCE DEPARTMENT.
652
MILITARY LAWS OF THE UNITED STATES.
such can be spared, for the proper instruction and practice
of the militia in heavy artillery drill, and for this purpose
a suitable battery for these cannon will be constructed;
and for said construction and the transportation of said
cannon, and so forth, the sum of five thousand dollars is
hereby appropriated for supplying each State that may
so apply. Sec. 2, act of May 19, 1882 (22 Stat. Z., 93).
1706- No Part of the appropriations made for the Ord-
31^910 1901> v' nance Department shall be used in payment of freight
charges on ordnance or ordnance stores issued by said
department. Act of March 2, 1901 (31 Stat. Z., 910).
THE MILITIA OF THE DISTRICT OF COLUMBIA.
Par.
1707-1711. The enrolled militia.
1712-1716. Command.
1717-1725. The active militia, organiza-
tion.
1726-1731. Commissioned officers.
1732. Noncommissioned officers.
1733-1737. Enlisted men.
Par.
1738-1750. Arms, uniforms, and equip-
ments.
1751-1760. Military duties.
1761-1765. Military tribunals.
1766-1770. Expenses and allowances.
1771-1776. General provisions.
THE ENROLLED MILITIA.
Par.
1707. Liability to enrollment.
1708. Exemptions.
1709. Assessors to enroll the militia.
Par.
1710. Duty.
1711. Calling forth the militia.
of o> 1707. Every able-bodied male citizen resident within the
1UMarai 1889 v District of Columbia, of the age of eighteen years and under
25, p. 772. tne age Of forty -five years, excepting persons exempted
by section two, and idiots, lunatics, common drunkards,
vagabonds, paupers, and persons convicted of any infa-
to ** mous crime, shall be enrolled in the militia. Persons so
convicted after enrollment shall forthwith be disenrolled;
and in all cases of doubt respecting the age of a person
enrolled, the burden of proof shall be upon him. Act of
March 1, 1889 (25 Stat. L., 772.)
1708. In addition to the persons exempted from enroll-
ment in the militia by the general laws of the United
States, the following persons shall also be exempted from
enrollment in the militia of the District of Columbia,
namely: Officers of the government of the District of
Columbia; judges and officers of the courts of the District
of Columbia; officers who have held commissions in the
Regular or Volunteer Army or Navy of the United States;
Exemption.
Sec. 2, ibid.
MILITARY LAWS OF THE UNITED STATES. 653
officers who have served for a period of five years in the
militia of the District of Columbia or of any State of the
United States; ministers of the gospel; practicing physi-
cians; conductors and engine-drivers of railroad trains;
members of the paid police and fire department. Sec. 2,
ibid.
1709. The Commissioners of the District of Columbia en^fS8or8 to
shall provide for the enrollment of the militia, and for this Sec- 3> ***•
purpose may require the assessors of taxes, at the same
time they are engaged in taking the assessment of valua-
tion of real and personal property, to make a list of per-
sons liable to enrollment; and such record shall be deemed
a sufficient notification to all persons whose names are thus
recorded that they have been enrolled in the militia.
Immediately after the completion of each enrollment they
shall furnish the commanding general of the militia with
a copy of the same. Sec. 3, ibid.
1710. The enrolled militia shall not be subject to any guty. ^^
duty except when called into the service of the United
States, or to aid the civil authorities in the execution of
the laws or suppression of riots. Sec. 4? ibid.
1711. Whenever it shall be necessary to call out anJ sej?vr£|ring into
portion of the enrolled militia the commander in chief Sec- 5- Md-
shall order out, by draft or otherwise, or accept as volun-
teers as many as required. Every member of the enrolled
militia who volunteers, or who is ordered out or drafted
under the provisions of this act, who does not appear at
the time and place designated, may be arrested by order
of the commanding general and be tried and punished by
a court-martial. The portion of the enrolled militia
ordered out or accepted shall be mustered into service
for such period as may be required, and the commanding
general may assign them to existing organizations of the
active militia, or may organize them as the exigencies of
the occasion may require. Sec. 5, ibid.
COMMAND.
Par.
1712. Commander in chief.
1713. Commanding general.
1714. Staff, noncommissioned staff .
Par.
1715. Detail of army officer as adjutant-
general.
1716. Detail of retired officer.
1712. The President of the United States shall be the cg)er?mander in
commander in chief of the militia of the District of sec.6,<wa.
Columbia. Sec. 6, ibid.
654 MILITARY LAWS OF THE UNITED STATES.
genemrnding 1713- There sha11 be appointed and commissioned by the
President of the United States a commanding general of
the militia of the District of Columbia, with the rank of
brigadier-general, who shall hold office until his successor
is appointed and qualified, but may be removed at any
time by the President. Sec. 7, ibid.
lef 8?£rs' 1714- The stafl< of the militia of the District of Columbia
shall be appointed and commissioned by the President, and
hold office until their successors are appointed and quali-
fied, but may be removed at any time by the President.
It shall consist of one adjutant-general, with the rank of
lieutenant-colonel; one inspector-general, one quartermas-
ter-general, one commissary-general, one chief of ord-
nance, one chief engineer, one surgeon-general, one judge-
advocate-general, and one inspector-general of rifle prac-
tice, each with the rank of major; and four aids-de-camp,
8iraedC8°teffmis each wl^ ^e rank °f captain. The commanding general
may appoint a noncommissioned staff of the militia to
consist of one sergeant-major, one quartermaster-sergeant,
one commissary-sergeant, one ordnance-sergeant, two staff
sergeants, one hospital steward, one color-sergeant, and
one sergeant-bugler. Sec. 8, ibid.
jutent-genera?d" 1715> Tlie President may assign an officer of the Army
sec. 9, ibid, to act as adjutant-general of the militia of the District of
Columbia, who, while so assigned, shall be commissioned
as such and be subject to the orders of the commanding
general and the provisions of this act: Provided, however,
That the officer so assigned shall receive no other pay or
Pay. emolument than that to which his rank in the Army entitles
him when on detached service.1 Sec. 9, ibid.
tired^ffice0^ re" 1716- The President of the United States may detail as
8iJpn67i' 19°°' v< adjutant-general of the District of Columbia militia any
retired officer of the Army who may be nominated to the
President by the brigadier-general commanding the Dis-
trict of Columbia militia, said retired officer wHile so
detailed to have the active-service pay and allowances of
his rank in the Regular Army. Act of June 6, 1900 (31
Stat. Z., 671}.
lHeld that it would not be within the prohibitions of section 1222, Revised Stat-
utes, but legal, to detail an officer of the Army to act as adjutant-general of the
militia of the District of Columbia, there being no such office established by law;
that such officer, in so acting, would be performing military service and would not
be holding a "civil office." Dig. Opin. J. A. G., 521, par. 16.
MILITARY LAWS OF THE UNITED STATES.
655
THE ACTIVE MILITIA.
ORGANIZATION.
The active militia; the National
Guard.
Strength, peace basis.
Infantry regiments.
Infantry battalions.
Par.
1722. Artillery battery.
1723. Signal, ambulance, and engineer
corps.
1724. Band.
1725. Disbanding companies below mini-
mum in strength.
Par.
1717.
1718.
1719.
1720.
1721. Infantry companies.
1717. The active militia shall be composed of volunteers,
and shall be designated the National Guard of the District Mar l 1889 s
of Columbia; and in case the militia of the District of 10^.25, p. 772."
Columbia are called into the service of the United States,
or required for the suppression of riots, or to aid civil
officers in the execution of the laws, shall be the first to be
ordered into service. Sec. 10, act of March 1, 1889 (25
Stat. Z.,770).
1718. In time of peace the National Guard shall consist Petceb£lsth °n
of not more than twenty-eight companies of infantry, Sec-ll>ibid-
which shall be arranged by the commanding general into
such regiments, battalions, and unattached companies as
he may deem expedient; one battery of light artillery;
one signal corps; one ambulance corps; one engineer
corps; one band of music, and one corps of field musicians.
Sec. 11, ibid.
1719. Regiments of infantry shall consist of three bat- in|eng^ents of
talions; and to each regiment there shall be one cclonel
and one lieutenant-colonel, and a staff to consist of one
surgeon, one adjutant, one quartermaster, one inspector
of rifle practice, and one chaplain, each with the rank of
captain; and a noncommissioned staff, consisting of one
sergeant-major, one quartermaster-sergeant, one commis-
sary-sergeant, and one hospital steward. Sec. 12, ibid.
1720. Battalions of infantry shall consist of four com- infantry
panics; and to each battalion there shall be one major, and sec. is, ma.
a staff consisting of one surgeon, one adjutant, one quar-
termaster, and one inspector of rifle practice, each with
the rank of first lieutenant; and a noncommissioned staff,
consisting of one sergeant-major, one quartermaster-ser-
geant, and one hospital steward. Sec. 13, ibid.
1721. To each company of infantry there shall be one infantry com-
,, , ,. J panies.
captain, one first lieutenant, one second lieutenant, one sec. 14, ma.
first sergeant, four sergeants, one corporal to each ten
privates, and not more than eighty -seven privates; and the
minimum number of enlisted men shall be forty. Sec. 14.
ibid.
Sec- 12> md-
bat-
656
MILITARY LAWS OF THE UNITED STATES.
bat-
sec. 15, ibid.
secii,ibid.
coDmpanndiesgbe-
sec. 18, ibid.
1722. The battery of light artillery shall have not less
^han f our nor more than six guns. To four guns there
shall be one captain, two first lieutenants, one second lieu-
tenant, one first sergeant, one quartermaster-sergeant, five
sergeants, eight corporals, two buglers, and not more than
eighty-two privates; and the minimum number of enlisted
men shall be fifty-seven. To more than four guns there
shall be, for each additional gun, one sergeant, two cor-
porals, and not more than twenty nor less than ten pri-
vates; for two additional guns there shall be one additional
second lieutenant. Sec. 15, ^bid.
1723. To each signal corps, ambulance corps, and engi-
neer corps there shall be one first lieutenant, two ser-
geants, two corporals, and not more than thirty -two nor
less than fourteen privates. Sec. 16, ibid.
1724. The band of music shall consist of one chief
musician, two sergeants, two corporals, and thirty-two
privates; and the corps of field music of one principal
musician, two sergeants, two corporals, and thirty-two
privates. The chief musician, principal musician, and
other noncommissioned officers of the band and field music
shall be appointed by the commanding general. Sec. 17,
ibid.
1725. When any company of the National Guard shall,
f°r a period of not less than ninety days, contain less than
fae minimum number of enlisted men prescribed by this
act, or upon a duly ordered inspection shall be found to
have fallen below a proper standard of efficiency, the com-
manding general may either disband such company or
consolidate it with any other company of the National
Guard, and grant an honorable discharge to the supernu-
merary officers and noncommissioned officers produced by
such consolidation. Officers and enlisted men discharged
by reason of such disbanding or consolidation and at amT
time thereafter reentering the service shall have allowed
to them, as part of their term of service, the time already
served. Sec. 18, ibid.
COMMISSIONED OFFICERS.
Par.
1726. Commissioned by the President.
1727. Staff officers.
1728. Field officers; company officers.
Par.
1729. Elections.
1730. Examinations.
1731. Discharges.
^726. All officers shall be commissioned by the Presi-
dent of the United States. In time of peace, or when not
MILITARY LAWS OF THE UNITED STATES.
657
in the service of the United States, they shall previously
be elected or nominated as herein provided. No person
commissioned as an officer shall assume such rank or
enter upon the duties of the office to which he may be
commissioned until he has accepted such commission and oath.
taken such oath or affirmation as may be prescribed. Sec.
19, ibid.
1727. The staff officers of a regiment or battalion shall staff officers.
Sec.
Sec. 20, ibid.
Field officers.
Company offi-
cers.
Elections.
Sec.22,iWtf.
Examinations.
Sec. 23, ibid.
be nominated by the permanent commander thereof.
20, ibid.
1728. Field officers of regiments or battalions shall be
nominated by the commanding general. Captains and
lieutenants of companies shall be elected by the written sec.2i.iwd,
votes of the enlisted men of the respective companies.1
Sec. 21, ibid.
1729. Elections of officers shall be ordered and held
under such regulations as may be prescribed by the com-
manding general. Sec. 22, ibid.
1730. Every person accepting an election or nomination
as an officer shall appear before an examining board, to be
appointed by the commanding general, which board shall
examine said officer as to his military and other qualifica-
tions. If any officer shall fail to appear before the board
of examination within thirty days after being notified, or
shall fail to pass a satisfactory examination, the fact shall
be certified by the board to the commanding general, who
shall thereupon declare the election or nomination of such
officer null and void. If, in the opinion of the board, such
officer is competent and otherwise qualified, they shall cer-
tify the fact to the commanding general, who shall there-
upon recommend him to the President for commission.
Sec. 23, ibid.
1731. A commissioned officer may be honorabl}T dis-
charged—
Upon tender of resignation;
Upon disbandment of the organization to which he
belongs;
Upon report of a board of examination, or for failure to
appear before such board when ordered.
Section 21 of the act of March 1, 1889, reorganizing the District of Columbia militia,
requires that captains and lieutenants of companies shall be elected by the enlisted
men of the same. Held, that this enactment would prevent the assignment to a com-
pany of an officer not first elected thereby. So that it would require that such offi-
cers be appointed as officers of the particular companies by which they had been
elected, and would not permit of their appointment simply to the arm of service, as
in the Army. Dig. Opin. J. A. G., 22, par. 17.
22924—08 42
Discharges.
Sec. 24, ibid.
658 MILITARY LAWS OF THE UNITED STATES.
He may be dismissed upon the sentence of a court-martial
or conviction in a court of justice of an infamous offense.
Sec. $4, ibid.
NONCOMMISSIONED OFFICERS.
.Noncommis- 1732. Noncommissioned staff officers shall be appointed
sioned officers.
Appointment, by the permanent commander of the organization to which
they belong; and permanent commanders of battalions
shall appoint the noncommissioned officers of companies,
upon the written nomination of the respective captains;
but they may withhold such appointment if, in their judg-
ment, there be proper cause; noncommissioned officers of
unattached companies shall be appointed by their respec-
tive captains. The permanent commander of any battalion
or unattached company may reduce to the ranks any com-
pany noncommissioned officers of his command. Sec. 25,
ibid.
ENLISTED MEN.
Par.
1733. Enlistment; term; reenlistment.
1734. Oath.
Par.
1736. Dishonorable discharge.
1737. Discharge certificates.
1735. Discharge, honorable.
Enlistment. 1733. Enlistment in the National Guard shall be for the
Term. term of three years: Provided, hoivever, That any soldier
who may have received an honorable discharge, by reason
of the expiration of his term of service, may, within thirty
Reenlistment. days thereafter, reenlist for a term of one, two, or three
Sec. 26, ibid. , ' , . . £ , .
years, to date from the expiration ot his previous term.
All terms of service, except in case of reenlistment, shall
commence at noon on the day of enlistment and expire at
noon on the day of discharge. Sec. 26, ibid.
oath, etc. 1734. Every person enlisting in the National Guard shall
sign an enlistment paper which shall contain an oath of
allegiance to the United States. The requisites and regu-
lations for enlistment and the form of enlistment paper
and oath for enlisting men shall be prescribed by the com-
manding general. Sec. 27, ibid.
Discharges: 1735. No enlisted man shall be honorably discharged
Honorable. . - , . ,, . ,
sec. 28, aid. before the expiration of his term of service, except by
order of the commanding general, and for the following
reasons:
Upon his own application, approved by the command-
ing officer of his company and by superior commanders;
Upon removal from the District;
Upon disability, established by certificate of medical
officer;
MILITARY LAWS OF THE UNITED STATES. 659
To accept promotion by commission;
Whenever, in the opinion of the commanding general,
the interest of the service demand such discharge. Sec.
28, ibid.
1736. Enlisted men shall be dishonorably discharged by gJSJ'Sffi*
order of the commanding general:
To carry out the sentence of a court-martial;
Upon conviction of felony in a civil court;
Upon expulsion from his company, in accordance with
its by-laws or regulations;
Upon discovery of reenlistment after previous dishon-
orable discharge. Sec. £9, ibid.
1737. Every soldier discharged from the service of the digceh^ceate ° f
District shall be furnished with a certificate of such dis- Sec- 30> md-
charge, which shall state clearly the reasons therefor.
Dishonorable discharges will have the word " dishonor-
able " written or printed diagonally across their faces, in
large characters, with red ink, and the reenlistment clause
will be erased by a line. Sec. 30, ibid.
ARMS, UNIFORMS, AND EQUIPMENTS.
Par.
1738. Arms, equipments, etc.
1739. Issued by Secretary of War.
1740. Issues made from army stores.
1741. Regulations for issue, care, etc.
Par.
1744. Accountability of officers.
1745. Unserviceable property.
1746. Distinctive uniforms.
1747. Private property of organizations.
1742. Returns. 1748. Armories.
1743. Selling, disposing, pawning, etc., 1749. Deductions of pay, deposit.
penalty. 1750. The same, expenditure.
1738. The uniforms, arms, and equipments of the Na- m£nrgs'
tional Guard shall be the same as prescribed and furnished Sec- 31>
to the Army of the United States. Every organization of
the National Guard shall be provided with such ordnance
and ordnance stores, clothing, camp and garrison equip-
age, quartermaster's stores, medical supplies, and other
military stores, as ma}7 be necessary for the proper train-
ing and instruction of the force and for the proper per-
formance of the duties required under this act. Sec. 31,
ibid.
1739. Such property shall be issued from the stores and
supplies appropriated for the use of the Army, upon the The same-
approval and by the direction of the Secretary of War, to
the commanding general, upon his requisitions for the
same. The property so issued shall remain and continue
to be the propert}7 of the United States, and shall be ac-
counted for by the commanding general at such times, in
660 MILITARY LAWS OF THE UNITED STATES.
manner, and on such forms, as the Secretary of War may
require.1 Sec. 31, ibid.
madeferomlr£y 1740. The Secretary of War is hereby authorized to
8tjuiy 23, 1888, issue from the stores of the Army such arms, ordnance
v. 25, p. 627. stores, quartermaster's stores, and camp equipage to the
militia of the District of Columbia as he may deem neces-
sary for their proper equipment and instruction. The
property so issued shall remain and continue to be the
property of the United States, and shall be annually
accounted for in such manner as the Secretary of War may
require. Act of July 23, 1888 (25 Stat. Z., 627).
1741. The commanding general may transfer all public
property, received by him for the use of the National
Guard under the provision of this act, to the several de-
partmental offices of the general staff, and may make and
prescribe regulations for its issue by them, and for its care
and preservation by the officers or soldiers to whom issued.
Sec. 32, act of March 1, 1889 (25 Stat. Z., 770).
1742. Every officer receiving public property for mili-
tary use shall be accountable for the articles so received
by him, and shall make returns of such property at such
times, in such manner, and on such forms as may be pre-
scribed. He shall be liable to trial by court-martial for
neglect of duty, and also make good to the United States
the value of all such property defaced, injured, destroyed,
or lost, by any neglect or default on his part, to be recovered
in an action of tort, or by any other action at law, to be
instituted by the judge-advocate-general of the militia at
the order of the commanding general. All money received
on account of loss or damages shall be paid in the Treasury
of the United States, and shall be accounted for by the com-
manding general in his returns to the Secretary of War.
Sec. 33, ibid.
for*s3iii£inetct 1743. Any officer or soldier who shall sell, dispose of,
Pawn or pledge, willfully destroy or injure, or retain after
proper demand made any public property issued under
the provisions of this act, shall be deemed guilty of a mis-
demeanor, and shall be punished by imprisonment for not
lHeld that the "military stores" required by section 31 of the act of March 1, 1889,
to be furnished for the militia of the District of Columbia, did not include copies of
the Infantry Drill Regulations. Dig. Opin. J. A. G., 521, par. 14.
Held that the clothing and camp and garrison equipage issued to the District of
Columbia militia, under section 31 of the act of March 1, 1889, was properly to be
inspected by militia, not by army officers; and that the condemned portion, if any,
was to be reported by the commanding general of the militia to the Secretary of War,
to be disposed of as he should direct. Ibid., par. 15. See also act of July 23, 1888,
paragraph 1287, post.
MILITARY LAWS OF THE UNITED STATES. 661
exceeding two months, or by a fine not exceeding one hun-
dred dollars, or by both; and it is hereby made the duty
of the judge of the police court of the District of Colum-
bia, upon information filed or complaint made under oath,
to issue process for the arrest of the offender, and to cause
him to be brought before the police court to be dealt with
according to the provisions of this section. Sec. 31^, ibid.
1744. Until an officer or his legal representative shall of^ffiSS^11"7
have received notice that the property accounts of such '
officer have been -examined and found correct, the liability
of such officer, or of his estate, for public property for
which he is or ma}^ have been responsible shall be in no way
affected by resignation, discharge, change in official posi-
tion, or death. Upon the death or desertion of an officer
responsible for public property his immediate commander
shall at once cause the property for which such officer was
responsible to be collected, and a correct inventory made
by actual count and examination; which inventory shall be
forwarded to the commanding general, in order that any
deficiency may be made good from the estate of the de-
ceased or deserting officer; compensation for such defi-
ciency maybe recovered in the manner provided in section
thirty-four. Sec. 35, ibid.
1745. Property issued or provided under the provisions prop|Jt™ceable
of this act which becomes unfit for use and is condemned Sec- 36> md-
as unserviceable shall be reported by the commanding gen-
eral to the Secretary of War, and shall be disposed of as
may be directed by him. Sec. 36, ibid.
1746. Any organization of the active militia mav, with Distinctive
J ' uniforms.
the approval of the commanding general and at its own sec. 37, ma.
expense, adopt any other uniform than that issued to it;
but such uniform shall not be worn when such organization
is on duty under the orders of the commanding general
except by his permission. Sec. 37, ibid.
1747. Organizations of the National Guard shall have p^f^i to T°™n_
the right to own and keep personal property, which shall erg^ 38 ilyid
belong to and be under the control of the active members
thereof; and the commanding officer of any organization
may recover for its use any debts or effects belonging to
it, or damages for injury to such property; action for such .uAns forin-
recovery to be brought, in the name of such commanding
officer, before any justice of the peace, with the right of
appeal to the supreme court of the District of Columbia,
or before the supreme court of the District of Columbia;
and no suit or complaint pending in his name shall be
662 MILITARY LAWS OF THE UNITED STATES.
abated by his ceasing to be commanding officer of* the
organization; but, upon the motion of the commander suc-
ceeding him, such commander shall be admitted to prose-
cute the suit or complaint in like manner and with like
effect as if it had been originally commenced by him. Sec.
38, ibid.
provided69 tobe 1748. The quartermaster-general of the militia shall
sec. 39, ibid. provi^e? by rental or otherwise, such armories for the Na-
tional Guard as may be allowed and directed by the com-
manding general. He shall also provide each organization
with such lockers, closets, gunracks, and cases or desks,
as may be necessary for the care, preservation, and safe-
keeping of the arms, equipments, uniforms, records, and
other military property in their possession. He shall also
provide suitable rooms for the offices of the commanding
general and staff, for the keeping of books, the transaction
of business, and the instruction of officers, and also suit-
able places for the 'storage and safe-keeping of public
property. Sec. 39, ibid.
fro^m^ay^bl 1749. All money s collected on account of deductions
d1B2r.ti?i9oi, v. made f rom the p&y of any officer or enlisted man of the
National Guard of the District of Columbia, on account of
Government property lost or destroyed by such individ-
ual, shall be repaid into the United States Treasury to the
credit of the officer of the militia of the District of Colum-
bia, who is accountable to the United States Government
for such property lost or destroyed. Act of March 1, 1901
(31 Stat. _£., 845).
fund?eno^ufne°df 1750t A11 moneys collected on account of deductions
bya?aerd"cti9oi v ma(^e from the pay of any officer or enlisted man of the
si, P. 845. National Guard of the District of Columbia for or on ac-
count of any violation of the regulations governing said
National Guard shall be held by the commanding general
of the militia of the District of Columbia, wto is author-
ized to expend such moneys so collected for general inci-
dental expenses of the service; and for all moneys so col-
lected and expended the commanding general shall make
an accounting in like manner as for the appropriation dis-
bursed for pay of troops. Act of March 1, 1901 (31 Stat.
Z., 845).
MILITARY LAWS OF THE UNITED STATES. 663
MILITARY DUTIES.
Par. Par.
1751. Drill, a military duty. 1756. Suppression of riots.
1752. Commanding general to prescribe ! 1757. Excuses from duty.
drills, etc. 1758. Parades, right of way.
1753. Annual inspection.
1754. Encampments.
1755. Use of grounds at Washington
Barracks.
1759. Parades and encampments, rules
for.
1760. Government employees.
1751. Any- drill, parade, encampment, or duty that isbe°f JJ
required, ordered, or authorized to be performed under ^c.
the provisions of this act shall be deemed to be a military
duty, and while on such duty every officer and enlisted
man of the National Guard shall be subject to the lawful
orders of his superior officers, and for any military offense
may be put and kept under arrest or under guard for a
time not extending beyond the term of service for which
he is then ordered. Sec. Jfl, ibid.
1752. The commanding general shall prescribe such Prescribing
drills, etc.
stated drills and parades as he may deem necessary lor the sec. 41, ibid.
instruction of the National Guard, and may order out any
portion of the National Guard for such drills, inspections,
parades, escort, or other duties, as he may deem proper.1
The commanding officer of any regiment, battalion, or
company may also assemble his command, or any part
thereof, in the evening for drill, instruction, or other
business, as he may deem expedient; but no parade shall
be performed by any regiment, battalion, company, or
part thereof without the permission of the commanding
general. Sec. 1+1, ibid.
1753. An annual inspection and muster of each organ- t. Annual inspec-
ization of the National Guard, and an inspection of their sec.42,tWd.
armories and of public property in their possession, shall
be made at such times and places as the commanding gen-
eral may order and direct. Sec. 1$, ibid.
1754. The National Guard shall perform not less than Encampments.
. , Sec. 43, ibid.
six consecutive days of camp duty in each year, at such
time as ma}^ be ordered by the commanding general; and
the quartermaster-general of the militia, subject to the
approval of the commanding general, shall provide, by
rental or otherwise, a suitable camp ground for the annual
1 It was held by the Attorney-General, in an opinion rendered at the request of the
Secretary of the Treasury, in May, 1896, that leaves of absence to employees of the
Government in Washington granted for the purpose of enabling them to discharge
their military duties, were not to be charged to the thirty days allowed them annu-
ally for rest and recreation. XXI Opin. Att. Gen., 353; but see VI Compt. Dec., 856.
664 MILITARY LAWS OF THE UNITED STATES.
encampment of the militia, make the necessary provisions
thereon for the encampment, and provide necessary trans-
portation to and from the same for baggage and "supplies.
Sec. 4^, ibid.
Use of wash- 1755. National Guard shall have the use of the drill
infecn4^aS. s grounds and rifle-range at the Washington Barracks, sub-
ject to the approval of the Secretary of War, and the
commanding general of the militia shall provide such addi-
tional targets and accessories as may be necessary for the
use of the militia. Sec. 44, ibid.
suppression of 1756. When there is in the District of Columbia a tumult,
nsec.e45,'t&M. riot, mob, or a body of men acting together by force with
attempt to commit a felony; or to offer violence to persons
or property, or by force and violence to break and resist
the laws, or when such tumult, riot, or mob is threatened,
it shall be lawful for the Commissioners of the District of
Columbia, or for the United States marshal for the Dis-
trict of Columbia, to call on the commander in chief to aid
them in suppressing such violence and enforcing the laws;
the commander in chief shall thereupon order out so much
and such portion of the militia as he may deem necessary
to suppress the same, and no member thereof who shall
be thus ordered out by proper authority for any such duty
shall be liable to civil or criminal prosecution for any act
done in the discharge of his military duty. Sec. 45-> ibid.
d Excuse from 1757 NQ officer Qr soldier of the Rational Guard, when
sec.46,»id. ordered on duty to aid the civil authorities, or when
ordered into the service of the United States in obedience
to the call or order of the President, shall be excused from
such duty except upon the certificate of the surgeon of his
command of physical disability, such certificate to be pre-
sented to the commanding general in case of an officer, or
to his company commander in case of a soldier. If such
officer or soldier fail to furnish such excuse he shall be
tried and punished by a court-martial. For absence from
any other military duty required or ordered under the pro-
visions of this act the penalty shall be such as may be pre-
scribed by the commanding general or the by-laws of the
organization to which the officer or soldier belongs. Sec.
46, ibid.
ha^aeradrei'ghttc"o(f 1758' The United States forces or troops, or any portion
wsec 47 ibid °^ the militia, parading, or performing any duty accord-
ing to law, shall have the right of way in any street or
highway through which they may pass: Provided, That
partmentfirltcde" ^e cal™ge of the United States mails, the legitimate
functions of the police, and the progress and operations of
MILITARY LAWS OF THE UNITED STATES.
665
fire-engines and fire departments shall not be interfered
with thereby. Sec. Ifl , ibid.
1759. Every commanding officer, when on duty, may rjj£slesaijdr en-
ascertain and fix necessary bounds and limits to his parad
or encampment. Whoever intrudes within the limits of
the parade or encampment after being forbidden, or who-
ever shall interrupt, molest, or obstruct any officer or sol-
dier while on duty, may be put and kept under guard
until the parade, encampment, or duty be concluded; and
the commanding officer may turn over such person to any
police officer, and said police officer is required to detain
him in custody for examination or trial before the police
court, and the judge thereof may punish such offense by
a fine not exceeding twenty-five dollars. Sec. Ji$, ibid.
1760. All officers and employees of the United States
and of the District of Columbia who are members of the
National Guard shall be entitled to leave of absence from
their respective duties, without loss of pay or time, on all
days of any parade or encampment ordered or authorized
under the provisions of this act.1 Sec. 4-9, ibid.
Sec> 49) ibtd-
MILITARY TRIBUNALS.
Par.
1761. Courts of inquiry.
1762. Courts-martial.
1763. Trials of enlisted men.
Par.
1764. Procedure.
1765. Procedure to conform to that in
Army.
1761. Courts of inquiry, to consist of not more thanquc.™rts of iu'
three officers, may be ordered by the commanding general, Sec- 5°i ibid-
for the purpose of investigating the conduct of any officer,
either at his own request or on a complaint or charge of
conduct unbecoming an officer. Such court of inquiry
shall report the evidence adduced, a statement of facts,
and an opinion thereon, when required, to the command-
ing general, who may, in his discretion, thereupon order
a court-martial for the trial of the officer whose conduct
has been inquired into. Sec. oO, ibid.
1762. General courts-martial for the trial of commis-
sioned officers or enlisted men shall be ordered by the
commanding general at such times as the interests of the
service may require, and shall consist of not less than five
nor more than thirteen officers and a judge-advocate, none
of whom shall be of less rank than the accused, when it
can be avoided. Sec. 51, ibid.
1 Rifle practice is not a parade within the meaning of the act of March 1, 1889
(25 Stat. L., 772). XX Opin. Att. Gen., 669.
666
MILITARY LAWS OF THE UNITED STATES.
iisterdamenf 1763- For the trial of enlisted men for all minor offenses
sec. 62, ibid. ^ne commanding officer of each battalion and unattached
company shall, at such times as ma}r be necessary, appoint
courts-martial. Such battalion and company courts-
martial shall consist, for a battalion, of one officer whose
rank is not below that of captain; and for a company, of
a lieutenant. Such courts shall have power, subject to the
approval of the officer ordering the court, to sentence to
be reprimanded by said officer in battalion or company
orders; or, in case of a company, noncommissioned officers
to be reduced to the ranks or to pay such fines as may be
imposed and allowed by the regulations or by-laws of the
organization to which the accused belongs; and such court
may, with the approval of the commanding general, sen-
tence to be reprimanded in general orders or to be dis-
honorably discharged. Sec. 52, ibid.
tn^,risceedingsiu 1764. The president of a general court-martial or court
sec.' 53, ibid, of inquiry, and the officer constituting a battalion or com-
pany court-martial, shall have power to administer the
usual oath to witnesses, and may issue summonses for all
witnesses whose attendance at such court may, in his opin-
ion, be necessary, and any officer or soldier failing to serve
such summons, and any witness failing to appear and tes-
tify when so summoned, shall be liable to trial by court-
martial. Sec. 53, ibid.
TO conform to 1765. In all courts-martial and courts of inquiry the ar-
Army trials. . " J
sec. 54, ibid, raignment of the accused, the proceedings, trial, and rec-
ord shall in all respects conform as nearly as practicable
to the regulations for the same in the Army of the United
States. Sec. 5^ ibid.
EXPENSES AND ALLOWANCES.
Par.
1766. General expenses.
1767. Bands.
1768. Subsistence while on dutv.
Par.
1769. Estimates; disbursements.
1770. Leases, contracts, etc.
General ex-
penses.
Sec. 55 ibid.
1766. There shall be allowed for the general expenses of
the militia such sums as may be necessary for the rental
and furnishing of offices for headquarters, stationery, post-
age, printing and issuing orders, advertising orders, pro-
viding necessary blanks for the use of the militia, the cost
of storing, caring for, and issuing all public property,
and such other contingent expenses, not herein specially
provided for, as may be estimated and appropriated for;
the accounts for which shall be certified to by the officer
MILITARY LAWS OF THE UNITED STATES. 667
receiving the service or property charged for, approved
by the commanding general, and paid in the manner pro-
vided in section sixty. Sec. 55 ', ibid.
1767. During the annual encampment, and on every ba^yScent to
duty or parade ordered by the commanding general, there Sec- 66« ibid-
shall be allowed and paid for each day of service: To each
member of the regularly enlisted band, four dollars; to
each member of the regularly enlisted corps of field music,
two dollars; to the chief musician, eight dollars, and to the
principal musician, six dollars. In event there is no
enlisted band or field music, or not a sufficient number of
either, the commanding general may authorize the employ-
ment of such as he may deem necessary for the occasion.
The payments for bands of music and drum corps shall be
made in the manner provided in section sixty. Sec. 56, ibid.
1768. During the annual encampment, or when ordered
on duty to aid the civilian authorities, the National Guard Sec- 57>
shall be furnished with subsistence stores of the kind,
quality, and amount allowed and prescribed by the Army.
Such stores shall be issued from the stores and supplies
apportioned for the use of the Army, upon the approval
and by the direction of the Secretary of War, to the com-
manding general upon his requisitions for the same. Sec.
57, ibid.
1769. The commanding general shall annually transmit
to the Commissioners of the District of Columbia an esti- Disbursements.
mate of the amount of money required for the next ensu-
ing fiscal year to pay the expenses authorized by this act,
and the said Commissioners shall include the same in their
annual estimates of appropriations for the District; and
all money apportioned to pay the expenses authorized by
this act shall be disbursed by the Commissioners of the
District of Columbia, upon vouchers duly certified and
approved by the commanding general, and accounted for
by them in the same manner as all other moneys appro-
priated for the expenses of the District. Sec. 58, ibid.
1770. Hereafter, all leases and contracts involving ex- be
penditures on account of the militia shall be made by the co
r J ot the District of
Commissioners of the District of Columbia; and the appro- c<j£JJ,bi£ 1896
priations for the militia shall be disbursed only upon v- 2Q. P- 412-
vouchers duly authorized by the Commissioners, ipr which
they shall be held strictly accountable. And no contract
shall be made or liability incurred under appropriations
for the militia of the District of Columbia beyond the
sums herein appropriated. Act of June 11, 1896 (29 Stat.
L.,
668 MILITARY LAWS OF THE UNITED STATES.
GENERAL PROVISIONS.
Par.
1771. By-laws, etc., restrictions.
1772. Duties of officers.
1773. Discipline, instruction, etc.
Par.
1774. Regulations.
1775. Status of members.
1776. Repealing clause.
1771. Companies, battalions, or regiments may adopt
^ko't^t^'b^re- constitutional articles of agreement or by-laws, subject to
pugnant to law, f^e approval of the commander in chief, for the govern-
ment of matters relating to the civic affairs of their
respective organizations, the regulation of fines for non-
performance of duty, and the determination of causes upon
which excuses from fines may be based: Provided, however,
That such articles or rules shall not be repugnant to law
or the regulations for the government of the militia: And
provided further, That the articles or rules adopted by any
company or battalion shall not be repugnant to the articles
or rules adopted for the general government of the regi-
ment or battalion to which it belongs. Certified copies of
such articles or rules, with like copies of all alterations, as
finally approved by the commanding general, shall be
deposited in the office of the Adj utant-General. Sec. 59, act
of March 1, 1889 (25 Stat. X., 772).
Duties of offi- 1772t The departmental and military duties of the offi-
sec. 60, ibid. cers provided for in this act shall be correlative with those
discharged by similarly designated officers in the Army of
the United States. Sec. 60, ibid.
Discipline. 1773. The system of discipline and field exercise ordered
to be observed by the Army of the United States, or such
other system as may hereafter be directed for the militia
by laws of the United States, shall be observed by the
National Guard. Sec. 61, ibid.
1774. The commanding general, subject to the approval
of the Commander in Chief, is authorized to make and pub-
lish regulations for the government of the militia in all
matters not specifically provided for b}r law, conforming
the same to the practice and regulations of the Army so
far as they may be applicable. Sec. 62, ibid.
status of mem- 1775. Members of the National Guard of the District of
Columbia who receive compensation for their services as
such sliall not be held or construed to be officers of the
United States, or persons holding any place of trust or
profit, or discharging an}^ official function under or in
connection with any Executive Department of the Gov-
ernment of the United States within the provision of sec-
cers.
MILITARY LAWS OF THE UNITED STATES.
669
tion fifty-four hundred and ninety-eight of the Revised
Statutes" of the United States. Act of March 1, 1901.
1776. The act umore effectually to provide for the or-
ganization of the militia of the District of Columbia, " 37Rpsi; °M ch
approved March third, eighteen hundred and three, is Sec-63.**d-
hereby repealed. Sec. 63, act of March 1, 1889 (26 Stat.
Z.,770).
p
THE TERRITORIAL MILITIA - ISSUES OF ARMS TO TERRITORIES.
Par.
1777. Governor to command militia.
1778. Election of general officers.
1779. Appointment of commissioned offi-
cers.
Par.
1780. Issues of arms to Territories.
1781. The same.
Territorial
Sr
1777. The executive power of each Territory shall be Jj4
vested in a governor, who shall hold his office for f our 2l
years, and until his successor is appointed and qualified, 9
unless sooner removed by the President. He shall reside
in the Territory for which he is appointed, and shall be
commander in chief of the militia thereof. He may grant J^6^
pardons and reprieves, and remit fines and forfeitures, for|^ f
offenses against the laws of the Territory for which he is 272i86?a
appointed, and respites for offenses against the laws of the^- 12^
United States, till the decision of the President can '
made known thereon. He shall commission all officers
who are appointed under the laws of such Territory,
shall take care that the laws thereof be faithfully executed,
235, s. 2, v. 15, p. 178. American Ins. Co. t'/356
Bales of Cotton, 1 Pet., 511. Sec. 1841, R. S.
1778. Justices of the peace and all general officers of the tices6of the peace
militia in the several Territories shall be elected by the ££. mi
people in such manner as the respective legislatures may
.-, , T
provide by law.
1779. All township, district, and county officers, except
justices of the peace and general officers of the militia,
shall be appointed or elected in such manner as may
provided by the governor and legislative assembly of each
Territory ; and all other officers not herein otherwise pro-
vided for the governor shall nominate, and by and with
the advice and consent of the legislative council of each
Territory shall appoint; but, in the first instance, where a
new Territory is hereafter created by Congress, the gov- JJ» P
ernor alone may appoint all the officers referred to in this iJJ, s. 7, y. 12 p.
~ •*• *• oil; Mont., May
and the preceding section and assign them to their respec- v6'^864'^.9^7'
tive townships, districts, and counties; and the officers soJgJ^jjfSi £
appointed shall hold their offices until the end of the first 1|>jc 1867 B< g>
session of the legislative assembly.
.
Sec, 1866, R. S.
1850,^49^8,
c-
670 MILITARY LAWS OF THE UNITED STATES.
178°- That the Secretary of War is hereby authorized to
statesnd border cause to be issued to the Territories, and the States border-
i3J°jui R|8'i876' *n£ thereon, such arms as he may deem necessary for their
v. 19, p. 214- joint protection, not to exceed one thousand to said States and
Res. No. 7, Mar. *L . . '
3, 1877, v. 19, p. lerritories each, and ammunition for the same, not to
v. 20, p. 6i.' 'exceed fifty ball cartridges for each arm: Provided, That
such issues shall be only from arms owned by the Govern-
ment which have been superseded and no longer issued to
the Army: Provided, however, That said arms shall be issued
only in the following manner, and upon the following con-
ditions, namely, upon the requisition of the governors of
said States or Territories showing the absolute necessity
of arms for the protection of the citizens and their property
against Indian raids into said States or Territories, also
that militia companies are regularly organized and under
control of the governors of said States or Territories to
whom said arms are to be issued, and that said governor or
governors shall give a good and sufficient bond for the
return of said arms or payment for the same at such time
as the Secretary of War may designate: Provided, That
the quota to the States now authorized by law shall not
hereby be diminished.1 Joint Res. No. 13, July 3, 1876
(19 Stat. L., 214).
Additional 1781. That the Secretary of War is hereby authorized
arms, etc., for , , . , ., ., ,-, ., . ,, ,,
Territories. to cause to be issued to each of the Territories of the
'i878i United States (in addition to arms and ammunition the
issue of which has been heretofore provided for), such
arms not to exceed one thousand in number as he may deem
necessary, and ammunition for the same not to exceed fifty
ball cartridges for each arm: Provided, That such issue
shall be only from arms owned by the Government of the
United States, which have been superseded and no longer
issued to the Army: And provided further, That said arms
shall be issued only in the following manner, and upon the
following conditions, namely, upon the requisition of the
governors of said Territories showing the absolute necessity
for arms for the protection of citizens and their property
against hostile Indians within or of Indian raids into such
Territories: And provided further, That the said governor
or governors of said Territories to whom the said arms
may be issued shall give good and sufficient bond or bonds
for the return of said arms, or payment therefor, at such
time as the Secretary of War may designate, as now pro-
vided for by law. " Joint Res. No. 26, June 7, 1878 (W
Stat. L.,
1 Superseded as to the Territories by joint resolution No. 26, June 7, 1878 (20 Stat,
L., 252), paragraph 1781, post. See also paragraphs 1693 and 1694, ante.
CHAPTER
MILITARY TRIBUNALS.
COURTS-MARTIAL. MILITARY COMMISSIONS, COURTS OF INQUIRY.
Par.
1782-1788. Arrest and confinement;
charges and specifications.
1789-1794. General courts-martial.
1795-1797. Jurisdiction.
1798-1800. Judge-advocates; counsel.
1801. Reporters and interpreters.
1802. Challenges. *
1803. Continuances.
1804,1805. Oaths.
1806. Behavior of members.
1807. Contempts of court.
1808. The arraignment.
1809-1813. Witnesses.
Par.
1814-1827. Evidence.
1828. Depositions.
1829. The finding.
1830. Closed sessions.
1831-1837. Sentences.
1838. Limits of punishment.
1839-1841. The record.
1842. Revision; proceedings.
1843-1850. The reviewing authority.
1851-1861. The inferior courts-martial.
1862. Military commissions.
1863-1869. Courts of inquiry.
ARREST AND CONFINEMENT! CHARGES AND SPECIFICATIONS.
Par.
1782. Arrest of officers.
1783. Confinement of enlisted men.
1784, 1785. Limitation on arrest or con-
finement.
Par.
1786. Written statement of offense.
1787. Reports of prisoners.
1788. Release without authoritv
etc.
of offi'
65Art-War-
1782. Officers charged with crime shall be arrested and
confined in their barracks, quarters, or tents, and de-
prived of their swords by the commanding officer.1 And
any officer who leaves his confinement before he is set at
liberty by his commanding officer shall be dismissed from
the service.2 Sixty-fifth Article of War.
1 Arrests, hoiv executed. — The manner in which the arrest, or personal attachment
of the alleged, offender, if an officer, shall be executed, is not described in the article
any further than it shall be done by the hand or authority of the commanding officer;
neither is it explained by the article what the degree of the personal restraint shall
be imposed by such arrest. Both of these must rest on the usages and customs of
war obtaining in the several cases. Samuels, Military Law, 640.
2 An officer may be put in arrest by a verbal or written order or communication
from an authorized superior, advising him that he is placed in arrest or will consider
himself in arrest or in terms to that effect. The reason for the arrest need not be
specified. At ^he same time he is usually required to surrender his sword, though
this formality may be dispensed with. But an arrest, though an almost invariable,
is not an essential preliminary to a military trial. To give the court jurisdiction it
671
672 MILITARY LAWS OF THE UNITED STATES.
[Footnote - — Continued.]
is not necessary that the accused should have been arrested ; it is sufficient if lie vol-
untarily, or in obedience to an order directing him to do so, appears and submits
himself to trial. So neither the fact that an accused has not been formally arrested
or arrested at all, nor the fact that having been once arrested and released from
arrest he has not been rearrested before trial, can be pleaded in bar of trjgl or con-
stitute any ground of exception to the validity of the proceedings or sentence. An
officer is in no case entitled to demand to be arrested. Dig. Opin. J. A. G., par. 502.
See, also, MANUAL FOR COURTS-MARTIAL, pp. 4-8.
The term "crime" is here employed in a general sense, referring to offenses of a
military character, as well as to those of a civil character which are cognizable by
court-martial. An offense in violation of this article is only committed when an
officer, confined in "close arrest" to his quarters, leaves the same without authority.
A breach of a mere formal arrest, or of any arrest not accompanied by confinement
to quarters, would be an offense, not within this article, but under article 62. Ibid.,
par. 170.
Except in the class of cases indicated in article 24, only "commanding officers" can
place commissioned officers in arrest. The commanding officer thus authorized is
the commander of the regiment, company, detachment, post, department, etc., in
which the officer is serving. Where a company is included in a post command, the
commander of the post rather than the company commander is the proper officer to
make the arrest of a subaltern of the company. Ibid., par. 503.
An officer is not privileged from arrest by virtue of being at the time a member of
a general court-martial. But an arrest of an officer while actually engaged upon
court-martial duty should, if possible, be avoided. Dig. Opin. J. A. G., par. 507.
Status of arrest. — Although the martial law makes no mention of any difference in
the nature of arrests in order to trial, a difference is established by the custom of the
Army, according to the degree or measure of the crime. An officer accused of a capital
crime, or any offense of which the penalty is so severe as to afford a natural tempta-
tion to escape from justice, ought to be detained in a state of confinement as secure
as the closest civil imprisonment. If the offense is of a lighter nature the presump-
tion is that the officer, whose character is thus impeached must be solicitous to obtain
a judicial investigation of his conduct; and he is therefore generally allowed to be in
arrest at large — that is, to walk about, within certain limits, without his sword, on his
word of honor to await the issue of his trial, or his enlargement by the proper
authority. The degree and measure of the arrest must, however, be entirely at the
discretion of tlie commanding officer, who will in all cases regulate his conduct by
the particular circumstances and by the dictates of propriety and humanity. Tytler,
p. 202. Besides the presumption mentioned by this writer in favor of an officer being
allowed to remain under a liberal restraint, is the positive security of his commission.
This confers upon him a beneficial office, and would be subject to forfeiture on his
withdrawing himself from the reach of military j ustice. This affords one great reason
for the distinction taken between a commissioned officer and soldier in the circum-
stances of the arrest. Samuels, Military Law, 641.
The status of being in arrest is inconsistent with the performing of military duty.
Placing an arrested officer or soldier on duty terminates his arrest. Releasing a sol-
dier from arrest and requiring him to perform military duty after his trial and while
he is awaiting the promulgation of his sentence, can be justified only by an extraor-
dinary exigency of the service. Dig. Opin. J. A. G., par. 505.
It is clearly to be inferred from paragraphs 998-999 of the Army Regulations, 1901,
that unless other limits are specially assigned him, an officer in arrest must confine
himself to his quarters. It is generally understood, indeed, that he can go to the
mess house or other place of necessary resort. It is not unusual, however, for the
commander, in the order of arrest, to state certain limits within which the officer is
to be restricted, and except in aggravated cases these are ordinarily the limits of
the post where he is stationed or held. An officer or soldier, though detained in
close arrest, should be permitted to receive such visits from his counsel,- witnesses,
etc.-, as may be necessary to enable him to prepare his defense. Ibid., par. 504.
An officer under arrest is not disqualified to prefer charges. Ibid., par. 508.
The imposition of an arrest affects in no manner the right of an officer or soldier
to receive the pay and allowances of his rank. Except in a case of a deserter (see
par. 140, Army Regulations, 1901) no legal inhibition exists to paying a soldier
while in arrest — either before trial or while awaiting sentence — his regular pay and
emoluments. Ibid., par. 509.
An arrest imposed by the Secretary of the Navy upon a chief of bureai»in the Navy
Department in the following terms, "You are pUced under arrest, and you will con-
fine yourself to the limits of the city of Washington," held not to constitute a restraint
MILITARY LAWS OF THE UNITED STATES. 673
1783. Soldiers charged with crimes l shall be confined
tried by court-martial or released by proper authority.2 66Art- of war.
/Sixty -sixth Article of War.
upon liberty sufficient to justify the use of the writ of habeas corpus." Wales v*
Whitney, 114 U. S., 564.
2 Breach of arrest. — An offense in violation of this article is only committed when
an officer confined in "close arrest" to his quarters leaves the same ^vithout author-
ity. A breach of a mere formal arrest, or of any arrest not accompanied by confine-
ment to quarters, would be an offense not within this article, but under article 62. (a)
Dig. Opin. J. A. G., par. 170.
Simply disobeying an order to proceed and report in arrest to a certain commander,
held not an offense chargeable under this article. Ibid., par. 171.
Where an officer in close arrest was permitted by his commanding officer to leave
temporarily his confinement, held that his delaying his return for a brief period
beyond the time fixed therefor did not properly constitute an offense under this
article. Ibid., par. 172.
Though any unauthorized leaving of his confinement by an officer in close arrest
is strictly a violation of the article, it would seem, in view of the severe mandatory
punishment prescribed, that an officer should not in general be brought to trial under
the same unless his act was of a reckless or deliberately insubordinate character.
Ibid., par. 173.
It is no clefense to a charge of breach of arrest in violation of this article that the
accused is innocent of the offense for which he was arrested. (6) It is a defense, how-
ever, that subsequently to the original confinement the accused has been put on duty,
or allowed to go on duty, provided that before the breach assigned he has not been
duly rearrested and reconfined.(c)
The requirement of this article, that an offender "shall be dismissed," is held to
be exclusive of any other punishment. A sentence of dismissal, with forfeiture of
pay, is unauthorized and inoperative as to the forieiture, and as to this should be dis-
approved. Ibid., par. 174.
xThe wrord "crimes," as used in this article, is construed to mean serious mili-
tary offenses. So that a soldier will not properly be "confined" where not charged
with one of the more serious of the military offenses — in other words, where charged
only with an offense of a minor character. Dig. Opin. J. A. G., par. 176.
2 Soldiers held in military arrest, while they may be subjected to such restraint
as may be necessary to prevent their escaping or committing violence, can not legally
be subjected to any punishment. The imposition of punishment upon soldiers while
thus detained has been on several occasions emphatically denounced by department
commanders, (d) Ibid., par. 175.
A soldier while confined in arrest should not be fettered or ironed except where
such extreme means are necessary to restrain him from violence, or there is good
reason to believe that he will attempt an escape and he can not otherwise be securely
held. Ibid., 511. See, also, par. 1010, A. R., 1901.
Under the regulations (par. 1004, A. R,., 1901) soldiers in confinement awaiting
action on the proceedings of their trials are assimilated to those awaiting trial, and
both classes may, at the discretion of the commanding officer, be employed, sep-
arately from prisoners undergoing sentence, upon such labor as is habitually required
of soldiers. More severe or other labor would not be legal, nor would labor with a
police party consisting in whole or in part of men under sentence, however slight
their sentence might be. (e] A soldier in arrest in quarters may be required to do
cleaning or police "work about his quarters which otherwise other soldiers would
have to do for him. See, also, MANUAL FOR COURTS-MARTIAL, pp. 4-8.
The fact that a soldier has been held in arrest for an unreasonably protracted
period before trial, or while awaiting the promulgation of his sentence, is a good
ground for a mitigation of his punishment. Dig. Opin. J. A. G., par. 506.
alnall cases of "constructive" breach of arrest, such as exercising military authority, wearing
sword, etc., the accused can not be charged under the sixty-fifth article, as the punishment is man-
datory and authorizes the sentence of dismissal only in case of "leaving his confinement." Ives,
Mil. Law, 66.
b Hough, Practice, 494.
r Hough, Precedents, 19.
rf.-k-e, for example, the remarks of such commanders in G. 0. 23, Department of the East, 1863; G. O.
26, Department of California, 186(5; G. O. 23, Department of the Lakes, 1870; G. O. 106, Department of
Dakota, 1871. And compare remarks of Justice Story in Steere v. Filed, 2 Mason, 516.
eSee G. O. 44, Division of the Atlantic, 1889.
22924—08-
674 MILITARY LAWS OF THE UNITED STATES.
confinement °u 1784> No officer or soldier put in arrest shall be con-
70 Art. of war. tinned in confinement more than eight days, or until such
time as a court-martial can be assembled. l Seventieth
Article of W<tr.
jlirC^fwsr. 1^5 • When an officer is put under arrest for the purpose
of trial, except at remote military posts or stations, the
officer by whose order he is arrested shall see that a copy
of the charges2 on which he is to be tried is served upon
1One might be inclined to think, in reading the concluding branch of the article,
that the words "until such time as a court-martial can be conveniently assembled,"
intended some time within the eight days mentioned in the preceding member of the
sentence. But military usage is against such supposition. Samuels, 642. Referring
to this passage, Tytler observes that "the latter part of the clause evidently allows a
latitude which is capable of being abused; but as in a free country there in no wrong
without a remedy, the military law prescribes a mode of redress for all officers or sol-
diers who conceive themselves injured by the commanding officer, which must always
be sufficient for the restraint of every act of material injustice or oppression. ' ' Tytler,
p. 204.
Detaining soldiers in arrest for long and unreasonable periods, when it id practicable
to bring them to trial, is arbitrary and oppressive, and in contravention both of the
letter and spirit of this article. Whether the delay in any case is to be regarded as
so far unreasonable as properly to subject the commander responsible therefor to
military charges or a civil action must depend upon the circumstances of the situation
and the exigencies of the service at the time, (a) Dig. Opin. J. A. G., par. 177.
To give a court-martial jurisdiction of the person of an officer or soldier charged
with a military offense, it is not necessary that he shall have been subjected to any
particular form of arrest, or that he shall have been arrested at all, or even ordered
to attend the court. Here, as before a civil tribunal, his voluntary appearance and
submission for trial is all that is essential. Ibid., par. 1035.
2 CHARGES AND SPECIFICATIONS.
Charges and specifications. — In our practice, unlike that of the English courts-
martial, a military charge properly consists of two parts — the technical "charge"
and the "specification."' The former designates by its name, particular or general,
the alleged offense; the latter sets forth the facts supposed to constitute such offense.
An accusation Against an officer or soldier not thus separated in form would be
irregular and exceptional in our practice, and, till amended, would not be accepted
as a proper basis for proceedings under the code. Dig. Opin. J. A. G., par. 694,
See also MANUAL FOR COURTS-MARTIAL, pp. 15-20.
Framing of charges. — The same particularity is not called for in military charges
which is required in indictments. (/>) The essentials of a charge are: (1) That it
shall be laid under the proper article of war or other statute; (2) that it shall set
forth (in the specification) facts sufficient substantially to constitute the particular
offense. These essentials being observed, the simpler and less encumbered with
verbiage and technical terms the charge is, the better, provided it be expressed in
clear and intelligible English. However inartificial a pleading may be, it will prop-
erly be held sufficient as a legal basis for a trial and sentence, provided that the
charge and specification, taken together, amount to a statement of a military offense
either under a specific article or under the general article, No. 62. Ibid., par. 61)5.
There can be no legal objection to charging an offense as a " violation of " a par-
ticular article of war, although, in general, it will be preferable, to charge it by its
aCompare Blake's case, 2 Maule and Selden, 428; Bailey v. Warden, 4 ibid., 400.
b In regard to the proper form for a military charge, Attorney-General Cashing ( VII Opins., 603 ) says:
" There is no one of exclusive rigor and necessity in which to state military accusations." H (adds
further: "Trials by court-martial are governed by the nature of the service, which demands intelli-
gible precision of language, but regards the substance of things rather than their forms. * * *
The most bald statement of the facts alleged as constituting the olfense, provided the legal offense
itself be distinctively and accurately described in such terms of precision as the rules of military
jurisprudence require, will be te able in court-martial proceedings, and will be adequate ground-
work of conviction and sentence." So it is observed by Attorney-General Wirt (I Opins., 286) that
"all that is necessary " in a military charge is that it be "sufficiently clear to inform the accused of
the military offense for which he is to be tried, and to enable him to prepare his defense." And see
Tytler, 209; Kennedy, 69. It is- ably remarked by Gould (Pleading, p. 4) that "all pleading is essen-
tially a logical process;" and that, 'in analyzing a correct pleading, "if we take into view, with what
is expressed, what is necessarily supposed or implied, we shall find in it the elements of a good syl-
logism." But it can hardly be expected that military charges in general will stand this test.
MILITARY LAWS OF THE UNITED STATES. 675
[Footnote- — Continued.]
familiar and received name — as "drunkenness on duty," " misbehavior before the
enemy," "desertion," etc. Ibid., 225, par. 3.
Where an offense is clearly defined in a specific article, it is irregular and improper
to charge it under another specific article. So, where the article in which the offense
is defined makes it punishable with a specific punishment to the exclusion of any
other, it is error to charge it under an article, such as the sixty-second, which leaves
the punishment to the discretion of the court. On the other hand, it is equally
erroneous to charge under a specific article, making mandatory a particular punish-
ment, an offense properly charged only under article 62. Ibid., par. 697.
Where a specific offense is charged (i. e., an offense made punishable by an article
other than the general — sixty-second — article) and the specification does not state
facts constituting such specific offense, the pleading will be insufficient as a pleading
of that offense. Legal effect may, however, be given to a pleading if the charge and
specification, taken together, amount to an allegation of an offense cognizable by a
court-martial under article 62. And in all cases — whatever be the form, of the charge
or specification — if the two are not inconsistent, and, taken together, make out an
averment of a neglect or disorder punishable under this general article, the pleading
will be sufficient in law and will constitute a legal basis for a conviction and sentence.
Ibid., par. 699.
It is illogical and faulty pleading to charge a secondary offense in lieu of the actual
or principal offense, of which that charged was merely a consequence or incident.
But where the act committed involves several distinct offenses the party may
properly be arraigned upon the same number of separate charges. And all the
offenses with which an officer or soldier may be at one time chargeable should, if
practicable (and if the same are sufficiently grave), be charged and brought to trial
together. Undue multiplication, however, of charges, or forms of charge, is to be
avoided; thus charges should not in general be added for minor offenses which were
simply acts included in and going to make up graver offenses duly charged. 9 It may,
indeed, sometimes be expedient, where the offenses are slight in themselves* and it is
deemed desirable to exhibit a continued course of conduct, to wait before preferring
charges till a series of similar acts have been committed, provided the period be not
unreasonably prolonged; but in general charges should 1 e preferred and brought to
trial immediately or presently upon the commission of the offenses. Anything like
an accumulation or saving up of charges through a hostile animus on the'part of the
accuser is discountenanced by the sentiment of the service, (a) Ibid., pars. 7CO and
701.
The prosecution is at liberty to charge an act under two or more forms where it is
V\ here there are two sets of charges against an accused they should, if practicable,
be consolidated and one trial be had upon the whole, instead of two trials, one upon
each set. But after the accused has been arraigned upon certain charges, and has
pleaded thereto, and the trial on tjie same has been entered upon, new and addi-
tional charges, which the accused has had no notice to defend, can not be introduced
or the accused required to plead thereto. Such charges should be made the subject
of a separate trial, upon which the accused may be enabled properly to exercise the
right of challenge to the court and effectively to plead and defend. Ibid., par. 703.
Such loose and indefinite forms of charge as "fraud," " worthlessness," "inef-
ficiency," "habitual drunkenness," and the like will be avoided by good pleaders.
Such charges, indeed, in connection with specifications setting forth actual military
neglects or disorders (not properly chargeable under specific articles), may be sus-
tained as equivalent to charges of "conduct to the prejudice of good order and mili-
tary discipline." But a charge of "worthlessness," with specifications setting forth
repeated instances of arrests, confinements in the guardhouse, or trials and convic-
tions for slight offenses of the accused, hdd an insufficient pleading; such instances
not constituting military offenses, but merely the punishments or penal conse-
quences of such offenses. (What is really called for in such a case is a discharge
of the soldier under the fourth article of war.) A specification averring a general
incapacity induced by habitual intoxication does not set forth a military offense.
The accused in such a case should be charged with the acts of drunkenness com-
mitted as separate and distinct instances of offense, (c) Ibid., par. 704.
A charge expressed in too general terms is faulty and imperfect; the accused is
entitled to know for what particular act he is called to account. Thus a specifica-
nSee G.C. M. O. 71, Headquarters of the Army, 1879.
b *• For the purpose of meeting the evidence as it mav transpire." State v. Bell, 27 Md.. 675.
rSee G. O. 11, War Department, 1873.
676 MILITARY LAWS OF THE UNITED STATES.
[Footnote 2 — Continued.]
tion under article 62, in a case of an officer, which set forth, not a specific act of
offense, but an habitual course of conduct as incapacitating the accused for service
or for the performance of his proper duty, held seriously defective and subject to
be stricken out on motion. For such conduct, indeed, the remedy is not by charge
and trial, but by retirement under section. 1252, Revised Statutes. Ibid., par. 726.
A charge expressed in the alternative — either under article 17 or article 60 — is
irregular and defective, and, upon motion, may be stricken out or required to be
amended. Ibid., par. 727.
The specification should be appropriate to the charge. A charge ^of "conduct to
the prejudice of good order and military discipline," with a specification setting
forth a violation of a specific article, is an irregular and defective pleading, and so of
course is a charge of a specific offense with a specification describing not that but a
different specific offense, or a simple disorder or neglect of duty. Ibid., par. 705.
Where a specification to a charge preferred by a superior against an inferior officer,
instead of referring to the former in the third person, alleged that the accused
addressed abusive language to "me" and committed an assault upon "me," without
naming or otherwise indicating the subject of the abuse or assault, Held that such a
form, though supported by some of the English precedents, was not sanctioned by
our practice, and that, on objection being made to the same by the accused, the court
would properly either require that the specification be amended, or that, in incorpo-
rating the charge in the record, the name of the preferring officer be added. Ibid.,
par. 707.
A specification, in alleging the violation of an order which has been given in writing,
or of any written obligation — as an oath of allegiance, parole, etc. — should preferably
set forth the writing verbatim, or at least state fully its substance, and then clearly
detail the act or acts which constituted its supposed violation. Ibid., par. 709.
Allegations of time and place. — The time and place of the commission of the offense
charged ^hould properly be averred in the specification in order that it may appear
that the offense was committed within the period of limitation fixed by the one hun-
dred and third article, and in order to enable the accused to understand what par-
ticular act or omission he is called upon to defend, (a) A reasonably exact allegation
of the time is also important in some cases — especially those of desertion and absence
without leave — in order that the accused, if subsequently brought to trial for the
same offense, or, what is the same thing in law, for an offense included in the origi-
nal offense, may be enabled (by an exhibition of the record) properly to plead a
former acquittal or conviction of that offense. Ibid., par. 710.
Where the exact time or place of the commission of the offense is not known it is
frequently preferable to allege it as having occurred "on or about" a certain date or
time, or "at or near" a certain locality, rather than to aver it as committed on a
particular day or between two specified days, or at a particular place. There is no
defined construction to be placed upon the words "on or about" as used in the alle-
gation of time in a specification. The phrase can not be said to cover any precise
number of days or latitude in time. It is ordinarily used in military pleading for
the purpose of indicating some period, as nearly as can be ascertained and set forth,
at or during wrhich the offenses charged are believed to have been committed, in
cases where the exact day can not well be named. And the same is to be said as to
use of the words "at or near" in connection with the averment of place. These
terms "on or about" and "at or near" are, however, not infrequently (though
unnecessarily) employed in practice where the exact time or place is known and can
readily be alleged. Ibid., par. 711.
The allegation of time in a specification should be as nearly defined as the facts
will permit; but where the act or acts charged extended over a considerable space
of time it may be necessary to cover such period in the allegation. Thus, allegations
of "from March to September, 1887," and "from May to October, 1888," have been
countenanced in a case in which the accused was charged with the neglect of a duty
the performance of which was thus continuous. See G. C. M. O. 21, of 1889. Ibid.,
par. 729.
The same exactness in the averment of time is in general scarcely required where
the offense charged is one of omission as where it is one of the commission of a
specific act. It is sufficient in the former case to allege that the offense occurred
between certain named dates not unreasonably separated. So, an offense of com-
mission, which probably \\ad not completed, or may not have b^en completed on
any particular day, may "be similarly charged. Thus held that the allegations of time
a \s to the latitude allowable in the allegation of time in military pleadings, compare I Opin. Att.
Gen °95 °96 In the civil practice, "nothing is better settled than that proof of guilt is not confined
to the day mentioned in the indictment. It may extend back to any period previous to the finding
of the bill and within the statutory limit for prosecuting the offense." McBryde v. State, 34 Ga., 203.
MILITAKY LAWS OF THE UNITED STATES. 677
[Footnote - — Continued.]
and place were sufficient in a specification in which it was set forth that the offense
charged (which consisted of an improper disposition of public property) was com-
mitted by the accused "while en route between Austin, Tex., and Waco, Tex.,
between the 5th and 25th days of May, 1867." Ibid., par. 712.
But where it was alleged in a specification that the accused was drunk on duty at
some time or times during a period of seventy days, held that the specification did
not give sufficient notice to the accused of the specific offense which he was required
to defend, and was therefore uncertain, and insufficient. (a) Ibid.
Where a specification alleged that the accused was absent without leave at various
times between two dates, twenty days apart, held that the same was defective and
subject to exception as being double, each such absence being a snbstantive and dis-
tinct offense, (b) X, 471. But where the specification to a charge of violation of the
sixtieth article alleged the presentation by the accused of a fraudulent claim for
rations furnished for recruits and also for lodgings furnished for the same recruits
at the same time, held that the specification related to one transaction and was not
therefore to be necessarily regarded as double or defective, in view of the liberal rules
of pleading applicable to military charges. Ibid., par. 708.
Where time or place is omitted to be averred, or is averred without sufficient
definiteness, and the defect is excepted to by theaccused on being called upon to plead,
the court will probably direct that an amendment be made. But where in either
such case no objection is interposed by the accused, the proceedings will be sufficient
in law provided the time and place of the offense can be made out with reasonable
certainty from the testimony in connection with the specifications. If otherwise,
the proceedings will, where practicable, properly be returned to the court for cor-
rection, or where this can not be done, will, in general, probably be disapproved.
And where the offense is alleged to have been committed on a particular day, and
the evidence shows that it was committed on quite a different day, in such case,
provided time is not of the essence of the offense, and the specific act charged is suffi-
ciently identified by the other testimony, the variance between the allegation and
the proof will not constitute a fatal defect, and need not induce a disapproval of the
sentence where there has been a conviction. A return, however, of the record to the
court for correction, if practicable, would well be resorted to by the reviewing officer
before taking final action. Ibid., par. 713.
Matter of eridence in pleading. — While it is in general irregular to plead matter of
evidence, 'there is no objection to noting in brief in the specification the immediate
result or effect of the act charged, as a circumstance of description illustrating the
character and extent of the offense committed. Thus, while a homicide, if amount-
ing to murder, and capital under section 5339, Revised Statutes, or by the law of the
State, etc., can not as such be made the subject of a military charge in time of peace
(see sixty-second article), yet a capital homicide, where it has been committed in
connection with or as a consequence of a specific military offense charged against the
accused, as, for example, "mutiny," or ".offering violence to a superior officer,"
may properly be stated in the conclusion of the specification as matter of aggrava-
tion and as indicating the animus of the accused or the amount of force employed.
Ibid., par. 714.
Joint charge*. — Properly to warrant the joining of several persons in the same
charge and the bringing them to trial together thereon, the offense must be such as
requires for its commission a combination of action and must have been committed
by the accused in concert or in pursuance of a common intent. The mere fact of
their committing the same offense together and at the same time, although material
as going to show concert, does not necessarily establish it. Thus the fact that sev-
eral soldiers have absented themselves together without leave will not, in the absence
of evidence indicating a conspiracy or concert of action, justify their being arraigned
together on a common charge, for they may merely have been availing themselves
of the same convenient opportunity for leaving their station. Ibid., par. 715.
By whom preferred. — Military charges, though commonly originating with military
persons, may be initiated by civilians; indeed, it is but performing a public duty for
a civilian, who becomes cognizant of a serious offense committed by an officer or sol-
dier, to bring it to the attention of the proper commander. So a charge may origi-
nate with an enlisted man. But, by the usage of the service, all military charges
should be formally preferred by, i. e., authenticated by the signature of, a com-
missioned officer. Charges proceeding from a person outside the Army, and based
a Compare cases in G. 0. 193, Army of the Potomac, 1862; G. O. 98, Department of New Mexico, 1862.
bin the military, as in the civil, practice, double pleading — i. e., specifications setting forth two (or
more) distinct offenses (especially when chargeable under different articles of war) are properly con-
demned, and in sundry cases the conviction and sentence have been disapproved on account of the
duplicity in law of the pleadings. See G. C. M. O. 80, War Department, 1875; G. 0.
of the Missouri, 1863; id. 49, Department of the Ohio, 1864.
678 MILITARY LAWS OF THE UNITED STATES.
[Footnote - — Continued.]
upon testimony not in the possession or knowledge of the military authorities, should,
in general, be required to be sustained by affidavits or other reliable evidence, as a
condition to their being adopted. Ibid., par. 71H.
Any officer may prefer charges; an officer is not disqualified from preferring charges
by the fact that he is himself under charges or in arrest. Charges should be pre-
ferred to the authority empowered to convene the court for their trial. The signing
of charges, like orders, with the name of an officer, adding "by the order of" his
commander, is unusual and objectionable. Charges, where not signed voluntarily
by the officer by whom they are preferred, are, in practice, usually subscribed In
the judge-advocate of the court. Ibid., par. 717.
In cases where c*harges preferred against an officer are apparently susceptible of a
reasonable explanation, it is not unusual, especially where the charges are preferred
by an inferior against a superior, to afford the officer charged an opportunity to
make explanation before it be determined whether to bring him to trial. Ibid.,
par. 718.
It is a reprehensible practice to allow charges to lie long dormant before" being pre-
ferred. Charges should not be delayed, but should be brought to trial as soon as
practicable and while the evidence is fresh. A delay of five months remarked upon
as prejudicial to the administration of justice and unfair to the accused. Ibid.,
par. 722.
Commanding officers are not required to bring every dereliction of duty before a
court for trial, but will endeavor to prevent their recurrence by admonitions, with-
holding of privileges, and taking such steps as may be necessary to enforce their
orders. Par. 1027, A. R., 1901.
Charges, though preferred in the office of the Judge- Advocate-General, are not to
be signed by him. If not signed by the officer actually preferring them, they will
properly be authenticated by the signature of the acting judge-advocate of the depart-
ment, or, preferably, by the judge-advocate of the court. Dig. Opin. J. A. G., par.
723.
An objection that a charge is not signed should be taken at the arraignment, when
the omission may be supplied by the judge-advocate affixing his signature. By
pleading the general issue the accused waives the objection. Ibid., par. 724.
But to be taken cognizance of by the court, it is not essential that a charge should
be signed by any officer. If, though not so signed, it be duly officially transmitted
the court,
action of the
purposes of
trial, and trial upon it may be proceeded with by arraignment thereon of the accused.
Ibid., par. 725.
Reference for trial. — In general, charges can regularly and properly be ordered to be
tried, or transmitted for trial to the court, only by the authority of the officer con-
vening the court or that of his superior. An inferior to the convening officer can not
properly refer charges to the court for trial except under some specific OK general
authority received from that officer, (a) The mere fact, however, that a court has
proceeded to the trial of charges, referred to it without due authority by a commander
inferior to the. one who convened the court, can not affect the legality of the finding
or sentence in the case. Ibid., par. 719.
Withdrmval of charge*. — A withdrawal of charges constitutes no legal bar to their
being subsequently revived and repreferred. Charges, however, once formally with-
drawn will not iii general properly be revived except upon new material evidence
being obtained. Charges once {;<•< epted as a sufficient basis for action, by the com-
mander competent to convene a court for their trial, can not properly be withdrawn
except by his authority. Ibid., par. 720.
Amendment of charges. — How far charges may be amended by the judge-advocate
before the organization of the court depends mainly upon his authority, general or
special, to make amendments. After the arraignment, amendments of form may
always be made, with the assent of the accused or by the direction of the court; and
so may slight amendments of substance not so modifying the pleading as to make
it a charge of a new and distinct offense. An amendment so substantial as mate-
rially to modify the "matter" before the court, will not in general be authorized
(see eighty-fourth article), and any amendment whatever of substance should be
allowed by the court with caution and subject to the right of the accused to apply
for a continuance (see ninety-third article). Ibid., par. 720, note 1.
The judge-advocate is not unfrequently directed to prepare or refnune charges;
oe signed oy any omcer. ir, tnougn not so signed, it oe auiy ornciaiiy tr
by the convening commander, or other competent superior authority, to
either directly or through the judge-advocate "for trial," or "for the act
court," or in terms to such effect, it is sufficiently authenticated for the p
a This rule, though not always insisted upon in practice, has been repeatedly enjoined in express
terms by department commanders. See, for example, G.0. 67, Department of Arkansas, 18(54; G.O.88,
Department of Dakota, 1869; G. 0. 8, Department of Texas, 1874.
MILITARY LAWS OF THE UNITED STATES. 679
him within eight days after his arrest, and that he is
brought to trial within ten days thereafter, unless the
necessities of the service prevent such trial; and then he
shall be brought to trial within thirty days after the ex-
piration of said ten days.1 If a copy of the charges be
not served, or the arrested officer be not brought to trial,
as herein required, the arrest &hall cease.2 But officers
released from arrest, under the provisions of this article.
but where -charges, already formally preferred, are transmitted to him for prosec*u-
tion, he should not assume to modify them in material particulars in the absence of
authority from the convening officer. While he may ordinarily correct obvious mis-
takes of form or patent or slight errors in names, dates, amounts, etc., he can not
without such authority make substantial amendments in the allegations, o*r — least of
all — reject or withdraw a charge of specification, or enter a nolle prosequi as to the
same, or substitute a new and distinct charge for one transmitted to him for trial by
the proper superior, (a) Ibid., par. 1532.
A list of the proposed witnesses is no part of the military charge, though such a
list may properly be and is not unfrequently appended to a charge. In serving upon
the accused a copy of the charges, it is not essential, though the better practice, to
add a copy of the list of witnesses where one is appended to the original charges.
Appending such a list does not preclude the prosecution from calling witnesses not
named therein. Ibid., par. 721.
A middle name or initial is no part of a person's name in law, and except where it
is necessary to identify the individual, may be omitted from the charge without
affecting the validity of the finding or execution of the sentence. So a misnomer in
a charge, consisting of an erroneous middle name or initial, may be disregarded in a
charge unless the accused moves to strike out or interpose an objection, in the nature
of a plea in abatement, when he must also state his true name. The ch'arge may
then be amended accordingly in court, without delaying the proceedings. Ibid.,
par. 730.
A material amendment of a charge should properly be made before the actual trial.
Where a court-martial, after the trial was concluded, directed a specification to be
amended so as to render it more definite as to time and place, and then caused the
accused to be arraigned and to plead over again, mine pro tune, held, that its action
was without sanction of law or precedent. Ibid., par. 731.
A failure at the arraignment to take notice of a variance between the form of a
specification to which the accused is called upon to plead and such specification as it
appeared in the copy of the charges served at his arrest, is a waiver of the objection,
and the same can not be taken advantage of at a subsequent stage of the proceedings.
Ibid., par. 732.
Statement of enlistments. — The statement as to enlistments, discharges, etc., required
by paragraph 927, Army Regulations 1895, to be furnished with the original charge
to the convening authority, is not intended to be accompanied by a declaration on
the part of the commanding officer of the accused as to his present character. The
regulation does not call for the officer's opinion on the subject, or contemplate that
the character of the accused will betaken into consideration at this time. Ibid.,
par. 733.
lThough an officer in whose case the provisions of this article in regard to service
of charges and trial have not been complied with is entitled to be released from arrest,
heis not authorized to release himself therefrom. If he be not released in accordance
with the article, he should apply for his discharge from arrest, through the proper
channels, to the authority by whose order the arrest was imposed or other proper
superior. Dig. Opin. J. A. G., par. 178.
The term "within ten days thereafter," held, to mean after his arrest. Ibid., par 179.
*Hdd, a sufficient compliance with the requirement as to the service of charges, to
have served a true copy of the existing charges and specifications, though the list of
witnesses appended to the original charges was omitted, and though the charges
themselves were not in sufficient legal form, and were intended to be amended and
redrawn. Ibid., par. 180.
aSee G. O. 64, Department of the Cumberland, 1867; ibid. y.s. ibid., 1868; ibid. 85, Department of the
South, 1874. G. C. M. O. 36, 42, Department of the Platte, 1877; ibid. 13, ibid., 1878; ibid. 48, Military
Division of Pacific and Department of California, 1880.
680 MILITARY LAWS OF THE UNITED STATES.
may be tried, whenever the exigencies of the service
shall permit, within twelve months after such release
from arrest.1 Seventy -first Article of War.
men?^noffe£se; 1786- ^° provost-marshal, or officer commanding a guard.
voS-marshaiprt°o sna^ Defuse to receive or keep any prisoner committed to
"eflrt. war. n^s charge by an officer belonging to the forces of the United
States; provided the officer committing shall, at the same
time, deliver an account in writing, signed by himself, of
the crime charged against the prisoner. Sixty-seventh
Article of War.2
Report of pri.s- 1787. Every officer to whose charge a prisoner is com-
es Art. war. mited shall, within twenty-four hours after such commit-
ment, or as soon as he is relieved from his guard, report
in writing, to the commanding officer, the name of such
prisoner, the crime charged against him, and the name of
the officer committing him,3 and, if he fails to make such
report, he shall be punished as a court-martial may direct.
Sixty-eighth Article of War.
oiSr!epennitting 1788. Any officer who presumes, without proper author-
^y? ^° release any prisoner committed to his charge, or
suffers any prisoner so committed to escape, shall be pun-
ished as a court-martial may direct.4 Sixty-ninth Ar1i<:le
of War.
GENERAL COURTS-MARTIAL.
Par.
1789. Constitution.
1790. The same, time of war.
Pur.
1791, 1792, 1793. Composition.
1794. The same, officers of marines.
CONSTITUTION AND COMPOSITION'.
1789. Any general officer commanding an army, a ter-
division, or a department,. or colonel commanding
fact that cases of officers put in arrest "at remote military posts or stations"
arc excepted from the application of the article does not authorize an abuse of the
power of arrest in these cases. And where in such a case an arrest, considering the
facilities of communication with the department headquarters and other circum-
stances, was in fact unreasonably protracted without trial, held, that the officer was
entitled to be released from arrest upon a proper application submitted for the pur-
pose. Ibid., par. 181.
2See in this connection the English case of Wolton r. Gavin, 16 Q. B., 70, cited in
Ives's Mil. Law, p. 74.
3The report required in this article is that habitually submitted to the post or other
commander by the old officer of the day at the completion of his tour of duty. See
in this connection the requirements of the official Manual of Guard Duty in respect
to the duties of the officer of the day and the officer or noncommissioned officer
commanding the guard.
4 The Executive order of March 30, 1898 (G. O. 16, A. G. O., 1898), fixing the
limits of punishment, appoints different limits of punishment for willfully and for
negligently allowing an escape, as separate offenses. A charge of suffering an escape,
under this article, should therefore indicate in the specification whether the act is
alleged to be willful or negligent only. Dig. Opin. J. A. G., p. 79.
MILITARY LAWS OF THE UNITED STATES. 681
a separate department, may appoint general courts-martial 7- Art- War-
whenever necessary.1 But when any such commander is
1 This article specifies by what military officer a general court-martial may be cons-
tituted. The President of the United States has the power to order such a court, as
the con- stitutional Commander in Chief of the Army, irrespective of this article or
other statute. Dig. Opin. J. A. G., par. 182.
It is within the power of the President, as Commander in Chief, to convene a gen-
eral court-martial, even when the commander of the accused officer to be tried is not
the accuser. Swaini r. U. S., 165 U. S., 553. The President, as Commander in
Chief, has a right, virtute offitio, to appoint a general court-martial. Rurikle r. U. S.,
19 Ct. Cls., 396. A power to appoint courts-martial devolved, by statute, 011 any
other officer is shared by the President, though be be not named therein. Since the
earliest legislation of our Government it has been understood and intended that pow-
ers granted to general officers in regard to courts-martial are thereby granted to the
President. His name is to be understood as written in every statute which confers
upon a military officer military authority. Swaini v. U. S., 28 Ct. Cls., 173. The
President is empowered to convene general courts-martial not merely in the class of
cases specified in the seventy -second article of war (viz, where a military officer
thereby authorized to convene such a court is the "accuser or prosecutor " of an
officer in his command whom it is desired to bring to trial), but, generally and in
any case, by virtue of his authority as Commander in Chief of the Army. As such
he is authorized to -give orders to' his subordinates, and the convening of a court-
martial is simply the giving of an order to certain officers to assemble as a court and
exercise certain "powers conferred upon them, when so assembled, by the Articles of
War. This general power has been exercised in repeated instances by the President
since the formation of the Government. Indeed, if the same could not be exercised,
it would be impracticable, in the absence of an assignment of a general officer to com-
mand the Army, to administer military justice in a. considerable class of cases of offi-
cers and soldiers not under the command of any department, etc., commander, as a
large proportion of the officers of the general staff, for example, (a) Dig. Opin. J. A.
G.,' par. 2038.
A convening of a general court-martial nominally by the Secretary of War is in law
a convening by the President, and therefore as legal as if the President himself had
signed the order. Ibid., par. 2039.
This article, in empowering certain commanders to constitute the superior courts-
martial, makes them the judges in general of the expediency of ordering such courts
in particular instances. Except where specially authorized to do so by law or reg-
ulation, an officer or soldier can not demand a court-martial in his own case. Ibid.,
par. 183.
Where a commander empowered by this article to convene a general court-martial
declines, in the exercise of his discretion, to approve charges submitted to him by an
inferior and to order a court thereon, his decision should in general be regarded as
final. Ibid., par. 184.
The authority to order a court under this article is an attribute of command. Thus
a department commander, detached and absent from his command for any consider-
able period by reason of having received a leave of absence (whether of a formal or
informal character), or having been placed upon a distinct and sepaiate duty (as that
of a member of a court or board convened outside his department, for example), is
held to be incompetent during such absence to order a general court-martial as depart-
ment commander, even though no other officer has been assigned or has succeeded
to the command of the department. Ibid., par. 185.
Nor can a department commander, thus absent, exercise such authority through a
staff officer or other subordinate, or delegate the same to a subordinate to be exer-
cised by him. Nor, where a general court-martial duly convened by a department
commander has, at a time when the commander is thus absent from his command,
been reduced, by an incident of the service, below five members, can another member
legally be detailed upon the court, by the assistant adjutant-general, or other subor-
dinate officer remaining in charge of the headquarters, since such a detail would f>e
an exercise of a portion of the authority vested by this article in the commander, and
which can in no part be delegated. Ibid.
aThe authority of the President as Commander in Chief to institute general courts-martial has been
in fact exercised from time to time from an early period, in a series of cases, commencing' Avith those
of Brigadier-General Hull, Major-General Wilkinson, and Major-General Gaines, tried in 18)3-1816, and
including that of Brevet Major-General Twiuus. tried in 1858. His authority in this particular has
been in substance affirmed by the Judiciary Committee of the Senate, in Report No. 868, dated March
3, 1879, Forty-fifth Congress, third session. (A single member of the committee apparently dissented,
in a subsequent report of April 7, 1879, Mis. Doc. JSo. 21, Forty-sixth Congress, first session.)
682 MILITARY LAWS OF THE UNITED STATES.
the accuser or prosecutor x of any officer under his com-
mand the court shall be appointed by the President; and
its proceedings and sentence shall be sent directly to the
Secretary of War, by whom they shall be laid before the
President for his approval or orders in the case. Seventy-
second Article of War; act of July 5, 188 1+ (23 Stat. L. ,
me°of 179a In time of war the commander of a division, or of
w*8Art.war. a seParate brigade2 of troops, shall be competent to ap-
3, vei2,2p. S1.' C' Pomt a general court-martial. But when such commander
is the accuser or prosecute' r8 of airy person under his corri-
1 mand, the court shall be appointed by the next higher
commander.2 Seventy-third Article of War.
1 See note 3 to par. 1790, post.
2 According to the definition given in the act of March 3, 1799 (1 Stat. L., 752, sec.
1114, Rev. Stat,), a division is an organized command consisting of at least two
brigades, and a brigade is an organized command consisting of at'least two regiments
of infantry or cavalry. By section 9 of the act of April 22, 1898 (30 Stat. L., 362), a
division, in time of war, is required to be composed of three brigades, and each
brigade of three or more regiments. Dig. Opin. J. A. G., par. 192.
8 A brigade, to be a separate brigade in the sense of this article, must not exist as a
component part of a division; to authorize its commander to convene a general court-
martial it must be detached from, or disconnected with, any division, and be operat-
ing as a distinct command. Dig. Opin. J. A. G., 8*5, par. 1. So, where a command,
not attached to a division, but occupying a separate post or district, or operating sep-
arately in the field, was made up of regiments or parts <of regiments, sufficient to
compose a brigade, and such as were commonly, or might properly be, organized
into a brigade command, the same might in general be viewed as constituting a sep-
arate brigade in the sense of this article, i. e., so far as to empower its commander to
convene a general court-martial. Ibid. • See also ibid., par. 194-198.
CONVENING OFFICER AS ACCUSER OR PROSECUTOR.
It is not essential that the commander who convenes the court-martial for the trial
of an officer should sign the charges to make him the "accuser or prosecutor" within
the meaning of this article. Nor is the fact that they have been signed by another
conclusive on the question whether the convening commander is the actual accuser
or prosecutor. The objection that such commander is such calls in question the legal
constitution of the court, and while such objection, if known or believed to exist,
should regularly be interposed at or before the arraignment, it may be taken during
the trial at any stage of the proceedings, (a) If not admitted by the prosecution to
exist the accused is entitled to prove it like any other issue. Dig. Opin. J. A. G. , par.
186.
Whether the commander who convened the court is to be regarded as the "accuser
or prosecutor" in the sense of the article in question, where he has had to do with
the preparing and preferring of the charges, is mainly to be determined by his
animus in the matter. He'may like any other officer initiate an investigation of an
officer's conduct and formally prefer, as his individual act, charges against such
officer; or by reason of a personal interest adverse to the accused he may adopt prac-
tically as his own charges initiated by another; in which cases he i's clearly the
accuser or prosecutor within the article. On the other hand, it is his duty to deter-
mine, when the facts are brought to his knowledge, whether an officer within his
command charged with a military offence shall, in the interest of discipline and for
the good of the service, be brought to trial. To this end he may formally refer or
revise or cause to be revised and then formally referred charges preferred against
such officer by another; or, when the facts of an alleged offence are communicated
to him, he may direct a suitable officer, as a member of his staff, or the proper com-
mander of the accused, to investigate the matter, formulate and prefer such charges
as the facts may warrant, and having been submitted to him he may revise and refer
a See XVI Opin. Art. Gen.. 109.
MILITARY LAWS OF THE UNITED STATES. 683
1791. General courts-martial may consist of any number
of officers1 from five to thirteen, inclusive; but they shall
not consist of less than thirteen when that number can be
convened without manifest injury to the service.2 Seventy-
fifth Article of War.
1792. When the requisite number of officers to form a
general court-martial is not present in any post or detach-
ment, the commanding officer shall, in cases which require
the cognizance of such a court, report to the commanding
officer of the department, who shall, thereupon, order a
court to be assembled at the nearest post or department at
which there may be such a requisite number of officers, and
shall order the party accused, with necessary witnesses, to
be transported to the place where the said court shall be
assembled. Seventy -xi.dJi Article of War.
them for trial as in other cases; all this he may do in the proper performance of his
official duty without becoming the accuser or prosecutor in the case, (a) Of course he
can not be deemed such accuser or prosecutor where he causes charges to be preferred
and proceeds to convene the court by direction of the Secretary of War or a compe-
tent military superior. See also par. 188, ibid., and nol: to par. 187.
The provision of this article (and of Art. 73) that, when the convening commander
is "accuser or prosecutor," the court shall be convened by the President or " next
higher commander," being expressly restricted to general courts, has of course no
application to regimental or garrison courts. [But see SUMMARY COURT.] The same
principle, however, will properly be applied to proceedings before these courts, if it
can be done without serious embarrassment to the service. Ibid., par. 189.
1 Under this article all officers of the active list of the Army are eligible to be
detailed as members of general courts-martial. Chaplains, however, are not so
detailed in practice. -Retired officers, in view of sections 1259, 1260, Revised Statutes,
can not legally be assigned to court-martial duty. Dig. Opin. J. A. G., par. 199.
But only officers can be so detailed. Courts-martial composed in whole or in part
of enlisted men are unknown to our law. So an "acting assistant surgeon," being a
civilian, is not qualified to sit on a court-martial. Though any officer may legally
be detailed, it is desirable that no officer should be selected wlio, from having pre-
ferred the charges or other known reason, may be presumed to be biased or inter-
ested in the case. Ibid., par. 200.
2 This section is merely directory to the officer appointing the court, and his deci-
sion as to the number which can be convened without manifest injury to the service,
being a matter submitted to his sound discretion, must be conclusive. Martin v.
Mott, 12 Wheat, 19, 35; Mullan v. U. S., 140 U. S., 240. The limitation with ref-
erence both to the numbers and rank of the members of a general court-martial is
discretionary with the appointing power. Mullan v. U. S., 23 Ct. Cls., 34. Dynes
v. Hoover, 20 How., 81.
It is not essential to the validity of the proceedings that the order convening a
general court-martial of less than thirteen members should state that "no other offi-
cers" or "no greater number" "than those named can be assembled without mani-
fest injury to the service." Attorney-General Wirt (I Opins., 296) did hold such
a statement to be essential, but simply expressed the opinion that the President,
before confirming a certain death sentence, adjudged by a court of less than thirteen
members, would properly satisfy himself that a court of the full number could not
have been convened without prejudice to the service. It was held at an early period
by the United States Supreme Court that it was for the convening authority to
determine as to what number of officers could be detailed without manifest injury to
to service, and that his decision on the subject would be conclusive, (b)
a Compare late opinion, to a somewhat similar effect, of the Attorney-General of August 1, 1878 (XVI
Opms., 106), in which it is also held that where the record of the trial fails to indicate that the con-
vening officer was the " accuser or prosecutor " of the accused, the latter in applying to the Secretary
oi War to, have the proceedings pronounced invalid on this ground, may establish the facts by the
production of affidavits setting forth the circumstances of the case and the action of the commander.
6 Martin v. Mott, 12 Wheaton, 34-37 (1827).
684 MILITARY LAWS OF THE UJSITED STATES.
Regular offi- 1793. Officers of the Regular Army shall not be compe-
cers not to sit on . .
courts to *ry offi- tent to sit on courts-martial to try the officers or soldiers
cers or soldiers of .
other forces. of other forces, except as provided in Article < 8. 1 Seven fu-
11 Art. of War. . _".
seventh Article of war.
officers of ma- 1794. Officers of the Marine Corps, detached for service
"la? Amy Say with the Army by order of the President, may be asso-
00' °n elated with officers of the Regular Army on courts-martial
c. 132° s. 2, v. ±, for the trial of offenders belonging to the Regular Army,
P781irt. of war. or to forces of the Marine Corps so detached; and in such
cases the orders of the senior officer of either corps, who
may be present and duly authorized, shall be obeyed.
Seventy -eighth Article of War.
JURISDICTION.
Par.
1795. Officers triable by general courts
onlv.
Par.
1796. Retainers to camp.
1797. Militia on active service.
1795. Officers shall be tried only by general courts-b
martial;2 and no officer shall, when it can be avoided,
JThe volunteer force during the late war with Spain was not a part of the militia,
but of the Army of the United States. Though assimilated to the militia in some
respects, as, for example, in the mode of original appointment of regimental and
company officers, it was as distinct in law from the militia as was the so-called
"regular" contingent of the Army. (a) Volunteer officers once mustered into the
service of the United States and while they remained in that service did not differ
substantially from regular officers in their status, rights, or otherwise. Their tenure
of office was indeed briefer; this, however, was not a material legal distinction, since
the term of regular officers was also in some cases limited by a statute to a definite
period, as the duration of the existing war. See Dig. Opin. J. A. G., par. 208 and
2444, par. 1.
As the act "to provide for temporarily increasing the military establishment of the
United States in time of war," approved April 22, 1898, declares that the Army of
the United States in time of war shall consist of both the .Regular Army and the Vol-
unteer Army, it can not be held that the Volunteer Army is, with reference to the
Regular Army, "other forces," within the meaning of the 77th Article of War, but
regular officers may now sit on courts-martial for the trial of volunteer officers or
soldiers. Ibid., par. 209.
2 Courts-martial (though, within their scope and province, authoritative and inde-
pendent tribunals) are bodies of exceptional and restricted powers and jurisdiction,
their cognizance being confined to the distinctive classes of offenses recognized by the
military code, (b] Their jurisdiction is criminal, their functions being to assign (in
proper cases) punishment; they have no authority to adjudge damages for personal
injuries or private wrongs. (c). Dig. Opin. J. A. G., par. 1024.
The court-martial having jurisdiction of the person of the accused and of the offense
charged, and having acted within the scope of its lawful power, its decision and
sentence can not be reviewed or set aside by the civil courts by writ of habeas corpus
a As illustrating the distinction made in section 8, Article I, of the Constitution, between the Army
and militia, and indicating the status of the volunteers during the late war as a part of the former,
see K err v. Jones, 19 Ind., 351; Wantlanv. White, ibid., 171. In the matter of Kiinball, 9 Law Rep.,
503: Burroughs v. Peyton, 16 Grat., 483, 485.
6 Ex parte Wilkins, 3 Peters, 193; Barrett r. Crane, 16 Verm., 246: Brooks v. Adams, 11 Pick, 441;
Brooks v. Davis, 17 ibid.. 148; Brooks v. Daniels, 22 ibid., 498; Washburn v. Phillip, 2 Met., 296; Smith
r. Shaw, 12 Johns, 257; Mills r. Martin, 19 ibid., 7; In matter of Wright, 34 How. Pr., 221: Duffield v.
Smith, 3 Sergt. & Rawle, 590; Bell v. Tooley, 12 Iredell, 605: State v. Stevens, 2 McCord, 32; Miller r.
Scare, 2 W. Black., 1141; VI Opin. Att. Gen. ,'425. "A court-martial is a court of limited and special
jurisdiction. It is called into existence by force of express statute law, for a special purpose, and to
perform a particular duty; and when the object of its creation is accomplished it ceases to exist.
* * * If, in its proceedings or sentence, it transcends the limit of its jurisdiction, the members of
the court and the officer who executes its sentence are trespassers, and as such are answerable to the
party injured, in damages, in the courts." 3 Greenl. Ev., sec. 470.
cSee 2 Greeul. Ev., sec. 471, 476; United States v. Clark, 6 Otto, 40; Warden r. Bailey, 4 Taunt., 78.
MILITARY LAWS OF THE UNITED STATES. 685
tried by officers inferior to him in rank.1 Seventy-ninth
Article of War.
1796. All retainers to the camp, and all persons serving Retainers to
with the armies of the United States in the field, though 63 Art, of war.
not enlisted soldiers, are to be subject to orders, accord-
ing to the rules and discipline of war.2 Sixty-third Arti-
cle of War.
1797. The officers and soldiers of any troops, whether i/^c?wsh^e.
militia or others, mustered and in pay of the United States, ^rcuo Articles of
shall, at all times and in all places, be governed by the 64 Art. of war.
Articles of War. and shall be subject to be tried by courts-
martial.3 Sixty -fourth Article of War.
or otherwise. Johnson r Say re, 158 U. S., 109, 118; Dynes v. Hoover, 20 How., 65, 82;
Ex parte Reed, 100 U. S., 13; Ex parte Mason, 105 U. S., 696; Smith v. Whitney, 116
U. S., 167, 177-179.
Whenever the law permits the civil courts of the United States to review the pro-
ceedings of courts-martial, such review must be confined to the question of jurisdic-
tion alone. If the court-martial is found to have acted with jurisdiction, the civil
court can not and will not go into the case further. Wales v. Whitney, 114 U. S. , 564;
Dynes v. Hoover, 20 How., 82.
In order to become amenable to the military jurisdiction, an officer or soldier must
have been legally and fully admitted into the military service of the United States.
ThiiH held that an officer of the State volunteers appointed by a governor of a State,
but not yet mustered into the United States service, was not amenable to the jurisdic-
tion of a court-martial of the United States for an offense committed while engaged
in recruiting service under the authority of the governor. So held that the making
of fraudulent representations in the course of the preliminaries to an enlistment — as
in the "declaration of the recruit" — and before the enlistment was legally complete
and the soldier thus fully in the United States service, did not constitute an offense
within the cognizance of a court-martial. Dig. Opin. J. A. G., par. 1026.
As regards offenses, general courts-martial have exclusive jurisdiction over all
offenses punishable capitally, and over those defined in the fifty-eighth article, when
committed in time of war. " Over other offenses they have concurrent jurisdiction
with the inferior courts; but all offenses for which the limit of punishment is in excess
of the limits of punishing power of an inferior court, as wTell as all serious noncapital
offences for which limits of punishment have not been prescribed, will, when prac-
ticable, be tried by general court-martial. MANUAL FOR COURTS-MARTIAL.
: Whether the trial of an officer by officers of an inferior rank can be avoided or not
is a question, not lor the accused or the court, but for the officer con veiling the court;
and his decision (as indicated by the detail itself as made in the convening order)
upon this point, as upon that of the number of members, is conclusive. An officer,
therefore, can not successfully challenge a member because, merely, of being of a
rank inferior to his own. Dig. Opin. J. A. G., par. 210.
The statement added in orders convening courts-martial to the effect that "no
officers other than those named can be assembled withoutmanifest injury to the serv-
ice" is as superfluous and unnecessary, for the purpose of excusing the detail ot
officers junior to the accused, as it is for accounting for the fact that less than the
maximum number have been selected for the court.
2 A "retainer" is defined to be an attendant, or servant, and the term is applied to
one who attends upon a superior, as upon an officer or other person, and accompanies
the Army in such dependent capacity; the other class mentioned in the article and
designated as " persons serving with the Armies of the United States in the field,"
consists in and is composed of the authorized civilian employes of an army in the
field, or of its several staff departments. In both cases the persons designated in the
article, by accompanying the Army of their own free will, may be said, by such act,
to have voluntarily subjected themselves to military jurisdiction during the period of
their sojourn in the theater of active military operations.
3 The following classes of persons are, by statute, made subject to military law, and
are therefore amenable to trial by general court-martial :
(1) Members of the military establishment. Section 1094, Revised Statutes.
(2) Persons admitted to the Soldiers' Home at Washington, D. C. Section 4824,
Revised Statutes.
686 MILITARY LAWS OF THE UNITED STATES.
[Footnote 3— Continued.]
(3) Inmates of the National Home for Disabled Volunteers. Section 4835, Revised
Statutes.
(4) Persons guilty of contempt of court. Eighty-sixth Article of War.
(5) Post traders (in time of war only). Section 3, act of July 26, 1876 (19 Stat. L.,
100) .
(6) The Marine Corps, when serving with the Army. Section 1621, Revised
Statutes.
(7) The Militia, when called into active service. Sections 1642-1644, Revised
Statutes. Sixty-fourth Article of War.
8) Persons relieving or harboring the enemy. Forty-fifth Article of War.
9) Persons giving intelligence to the enemy. Forty-sixth Article of War.
10) Retainers to the camp, and all persons serving with armies in the field. Sixty-
third Article of War.
(11) Spies. Section 1343, Revised Statutes. See, also, in connection with the sub-
ject of jurisdiction, Manual for Courts-Martial, pp. 11-14.
(12) Soldiers sentenced by courts-martial to dishonorable discharge and confine-
ment. Section 5, act of June 18, 1898.
While it will in general be more for the interest and convenience of the service to
bring an accused officer or soldier to trial near the locality of his offense, he may
with equal legality be tried by a court convened in any other part of the United
States. Dig. Opin. J. A. G., 322, par. 2.
The jurisdiction over persons in the military service covers all military offenses
committed by them, whether within or beyond the territorial jurisdiction of the
United States. Military offenses are not territorial. ( Manual for Courts-Martial, p. 14. )
The jurisdiction of courts-martial is nonterritorial. In a case of an officer who
exhibited himself in a drunken condition at a public ball in Mexico, held that his
offense was cognizable by a court-martial of the United States, subsequently con-
vened in Texas by the department commander. This for the reason that the mili-
tary jurisdiction does not recognize territoriality as an essential element of military
offenses, but extends to the same wherever committed, a principle which is amply
confirmed by the comprehensive provision of the sixty-fourth Article of War. See
Dig. Opin. J. A. G., par. 169.
An officer or soldier (except as otherwise provided in the sixtieth article) ceases
to be amenable to the military jurisdiction for offenses committed while in the mili-
tary service after .he has been separated therefrom by resignation, dismissal, being
dropped for desertion, muster out, discharge, etc., and has thus become a civilian.
The old English precedent of Sackville's case (a) (which appears, indeed, to stand
alone even in England) has not been followed in this country or recognized in our
laws. Ibid., par. 1027.
A discharge of a soldier, when subject to trial and punishment for a military offense,
is a formal waiver and abandonment by the United States of jurisdiction over him.
Nor does a soldier, after having been once discharged, as where he has been dishpn-.
orably discharged by sentence, remain liable to the military jurisdiction for desertion
or any other military offense committed before discharge by reason of being still held
in military custody as a prisoner in confinement under the same sentence; for he is
then held, not as a soldier, but as a civilian convict.
Nor can a person who, by reason of acceptance of resignation, dismissal, discharge,
etc., has become wholly detached from the military service, be made liable to trial
by court-martial, for offenses committed while in the service, on the ground that such
offenses were not discovered till after he had left the Army.
The returning by a dismissed, etc., officer, to the service under a new commission
does not revive a jurisdiction for offenses committed while he was in the service
which had lapsed upon his being separated from it.
It is to be understood that the general rule of the npnamenability to military trial
of officers and soldiers, after discharge, dismissal, etc., is subject to a'specific statutory
exception, viz, that provided for in the concluding provision of the sixtieth article.
Dig. Opin. J. A. G., par. 1028.
Where a soldier in the Army of the United States was arrested for a crime, and his
term of enlistment expired before his trial and conviction by court-martial, held that
the jurisdiction of the court-martial having once attached by arrest, it retained juris-
diction for all the purposes of trial, judgment, and execution. Barret?'. Hopkins,
7 Fed. Rep., 312. Now, by section 5 of the act of June 18, 1898 (30 Stat. L., 484),
enlisted men sentenced to dishonorable discharge, and to periods of confinement in
a Note the counter dictum of Lord Mansfield, in Parker r. dive, 4 Burrow, 2419 (dated in 1779), that
officers of the Army, "after resigning their commission, cease to be objects of military jurisdiction."
MILITARY LAWS OF THE UNITED STATES. 687
[Footnote 3— Continued.]
addition thereto, are made liable to trial for offenses committed by them during such
period of confinement.
A soldier, however, provided he has not been in fact discharged, may be brought
to trial by court-martial after the term of service for which he enlisted has expired,
provided, before such expiration, proceedings with a view to trial have been duly
commenced against him by arrest or service of formal charges, (a) By such arrest or
service the military jurisdiction attaches, and, once attached, trial by court-martial
and punishment upon conviction may legally ensue, though the soldier's term of
enlistment may in fact expire before the trial be entered upon. In the leading case
on this point, of a seaman in the Navy (In re Walker, 3 American Jurist,. 281) (6),
the supreme court of Massachusetts held (January 25, 1830) as follows: "In this
case the petitioner was arrested, or put in confinement, and charges were preferred
against him to the Secretary of the Navy before the expiration of the time of his
enlistment; and this was clearly a sufficient commencement of the prosecution to
authorize a court-martial to proceed to trial and sentence, notwithstanding the time
of service had expired before the court-martial had convened." So held, in a case
of. a soldier in the Regular Army, arrested on the day before the expiration of his
term of enlistment, with a view to a trial for a military offense by court-martial, that
the jurisdiction of the court had duly attached, and that his trial might "egally be
proceeded with. And similarly held in repeated cases of soldiers and officers of "reg-
ular and volunteer regiments. Dig. Opin. J. A. G., par. 1029.
Where the amenability of a soldier for a military offense had been finally severed
by his due discharge from the service, held that it did not revive upon his reentering
the service within the period of limitation. Ibid., 331, par. 18.
By the sixth amendment of the Constitution, civilians are guaranteed the right of
trial by jury "in all criminal prosecutions." Thus, in time of peace, a court-martial
can not assume jurisdiction of an offense committed by a civilian without a violation
of the Constitution. It is only under the exceptional circumstances of a time of war
that civilians may, in certain situations, become amenable to trial by court-martial,
(c) Ibid., par. 1031.
A civilian brought to trial before a court-martial can not, by a plea of guilty or
other form of legal assent, confer jurisdiction upon the court, wrhere no jurisdiction
exists in law.(d)
Any statute by which any class of civilians is attempted to be made amenable to
trial by court-martial for offenses committed while civilians and in time of peace is
necessarily unconstitutional. Ibid., par. 1032.
It can not affect the authority of a court-martial to take cognizance of the military
offense involved in an injury committed by a soldier against an officer that before
the trial the latter has resigned or been otherwise separated from the Army. Ibid.,
par. 1037.
Whether a soldier ma> legally be held amenable to trial by court-martial for an
offense committed by him while on furlough will depend upon the nature of the
offense and the circumstances of his situation. In general, indeed, where he is thus
absent at his home or at such a distance from his station and from troops that his
offenses will not directly prejudice military discipline, he will not render himself
amenable to the military jurisdiction unless, indeed, he commits a desertion. See
MANUAL FOR COURTS-MARTIAL, p. 16, par. 7.
The discharge of a soldier not taking effect till notice thereof, actual or construct-
ive, held that a soldier w-ho committed a military offense on the day on which he
was to be dishonorably discharged under sentence but before the discharge was
delivered to him (or to the officer in charge of the prison at which he was also to be
confined under the same sentence) was amenable to the military jurisdiction for the
trial and punishment of such offense as being still in the military service. Ibid.,
par. 1039.
Courts-martial are no part of the judiciary of the United States, but simply instru-
mentalities of the Executive power. They are creatures of orders, the povVer to
convene them, as well as the power to act upon their proceedings, being an attribute
of command. But, though transient and summary, their judgments, when rendered
upon subjects within their limited jurisdiction, are as legal and valid as those of any
aSee G. C. M. 0. 16, War Department, 1871.
b And see Judge Story's charge to the jury in U. S. v. Travers, 2 Wheeler Cr. C., 509; In the matter
of Dew, 25 L. R., 540, In re Bird, 2 Sawyer, 33.
cSee, in support of this view. Ex par'te Milligan, 4 Wallace, 121-123; Jones v. Seward, 40 Barb., 563;
In matter of Martin, 45 ibid., 145: Smith v. Shaw, 12 Johns., 257, 265; In matter of Stacy, 10 ibid., 332;
Mills v. Martin. 19 ibid., 22. Johnson v. Jones, 44 Ills., 142, 155; Griffin v. Wilcox, 21 Ind., 386; In re
Kemp, 16 Wis., 359. Ex parte McRoberts, 16 Iowa, 605; Antrim s case, 5 Philad., 288; III Opin. Att. Gen.,
690; XIII ibid , 63.
d Compare People v. Campbell, 4 Parker, 386; Shoemaker v. Nesbit, 2 Rawle, 201; Moore r. Houston,
3 Sergt. & Rawle, 190; Duffield v. Smith, ibid., 599; also One hundred and third article.
688 MILITARY LAWS OF THE UNITED STATES.
Par.
JUDGE-ADVOCATES.
Par.
1798. Appointment.
1799. Duties.
1800. Counsel for accused, enlisted men.
c Jt£,dge-advo" 1798. Officers who may appoint a court-martial shall be
74 Art. of War. competent to appoint a judge-advocate for the same.1
Seventy-fourth Article of War.
other tribunals, nor are the same subject to be appealed from, set aside, or reviewed
by the courts of the United States or ot any State, (a) Dig. Opin. J. A. G., par. 992.
Their jurisdiction is criminal, their function being to assign (in proper cases) pun-
ishment; they have no authority to adjudge damages for personal injuries or private
wrongs. ( b )
It is no objection to the assuming by a court-martial of jurisdiction of a military
offense committed by an officer or soldier that he may be amenable to trial or may
actually have been tried and convicted by a criminal court of the State, etc., for a
criminal offense involved in his act.(c) And the reverse is also law, viz, that the
civil court may legally take cognizance of the criminal offense involved without
regard to the fact that the party has been subjected to a trial and conviction by court-
martial for his breach of military law or discipline. In such instances the act com-
mitted is an offense against the two jurisdictions and may legally subject the offender
to be tried and punished under both. Ibid., par. 1036.
*Any commissioned officer may legally be appointed judge-advocate of a court-
martial. Thus a surgeon, assistant surgeon, or even a chaplain, is legally eligible to
be so detailed. Dig. Opin. J A. G., par. 1521.
A separate judge-advocate should be appointed for each general court-martial con-
vened by a department or other competent commander. The same officer may,
indeed, be selected to perform the duties of judge- advocate as often as may be deemed
desirable by the commander, but he should be detailed anew for every court-martial
on which he acts. To appoint in a general order a particular officer to act as judge-
advocate for all the courts to be held in the same command would be quite irregular
and without the sanction of precedent. Ibid., par. 1522.
It is competent for the commander who has convened a court-martial to relieve the
judge-advocate originally detailed for it and substitute another in his place, and the
second may in the same manner be relieved by a third, etc. The relieving, however,
of a judge-advocate, pending a trial, must in general embarrass the prosecution of a
case, and should not be resorted to if it can well be avoided. Ibid., par. 1523.
Where there have been two or more judge-advocates successively detailed in the
course of a trial, the one who is acting at the close is the one (and the only one)
required to authenticate the proceedings by his signature. Ibid., par. 1524.
An officer serving as judge-advocate on the staff ot a department or army com-
mander has as such no authority to act as judge-advocate of a court-martial convened
by such commander. If it is desired that he shoulfl act as judge-advocate of such a
court, he should be specially detailed for the purpose. Ibid., par. 1527.
While a civilian may legally be appointed, or rather employed, as judge-advocate
<?See Dynes r. Hoover, 20 Howard, 79; Ex parte Vallandigham, 1 Wallace, 243; Wales r. Whitney,
114 U. S., 564; Fugitive Slave Law Cases, 1 Blatch., 635; In re Bogart. 2 Sawyer, 402, 409; Moore v.
Houston, 3 S. & R., 197; Ex parte Dunbar, 14 Mass.. 392; Brown v. Wads worth, 15 Verm., 170; People v.
Van Allen, 55 N. York, 31; Perault v. Rand, 10 Hun, 222; Ex parte Bright, 1 Utah, 148, 154; Moore r.
Bastard, 4 Taunt., 67: VI Opins. At. Gen., 415, 425. "No actsof military officersor tribunals, within the
scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of
common law." Tyler v. Pomeroy, 8 Allen, 484. Where a court-martial has jurisdiction, "its proceed-
ings can not be collaterally impeached for any mere error or irregularity committed within the sphere
of its authority. Its judgments, when approved as required, rest on the same basis and are sur-
rounded by the same considerations which give conclusiveness to the judgments of other legal tri-
bunals, including as well the lowest as the highest, under like circumstances." Ex parte Reed, 10
Otto, 13.
b In case property or monev stolen be brought into court and identified, the owner may claim it, and
the court will order it to be restored to him But, still, trial by court-martial is a criminal proceeding,
not an action to recover oebt, or sounding in damage for injury, and in this regard * * * the law
makes no distinction in favor of soldiers over other persons who have suffered loss or injury. G. O.
18, A. G. O., 1859. See also G. O. No. 2, A. G. O. of 1857.
cThus a soldier may be tried for a violation of Art. 21, in striking or doing other violence to a
superior officer, after'having been convicted by a civil tribunal for the criminal assault and battery.
So, an officer or soldier may be brought to trial under a charge of " Conduct to the prejudice of good
order and military discipline " for the military offense (if any) involved— in a homicide or a larceny,
of which, as a civil offense, he has been acquitted or convicted by a criminal court.
MILITARY LAWS OF THE UNITED STATES. 689
1799. The judge-advocate, or some person deputed by
him. or by the general or officer commanding the Army,
detachment, or garrison, shall prosecute 1 in the name of
of a court-martial, such an employment has, for the past fifty years, been of the
rarest occurrence in the military service. Civil judge-advocates have been much
more frequently employed for naval than for military courts-martial, (a) Ibid., par.
1528.
A direction in an order convening a general court-martial, that if the judge-advo-
cate be prevented from attending the junior member of the court will act in his
stead, held irregular and improper; the function of a judge-ad vocate as prosecuting
officer, not being properly compatible with that of a member of a court-martial.
And — the member having acted as judge-advocate in this case — adi'ised that the pro-
ceedings (though the court had still retained five members) be disapproved by the
reviewing authority. A court-martial has of course no authority to direct or empower
its junior member or any other officer to act as its judge-advocate. Ibid., pa/. 1526.
( 'hallenge of judge-advocate. — While a judge-advocate is not subject to challenge,
and it can not affect the legal validity of the proceedings of a court-martial that the
judge-advocate was personally objectionable or hostile to the accused, it is yet desir-
able to detail as judge-advocate, if practicable, an officer who has no considerable
Kejudice against the party to be tried, or any decided personal interest in his case. (6)
id., par. 1529.
An officer can not in general fitly or becomingly act as judge-advocate in a case in
which he is personally interested as accuser or prosecutor. Where the judge-advo-
cate had prepared the charges and was the accuser in the case, and moreover enter-
tained a strong personal prejudice or hostility against the accused, Jield that he was
ill-chosen to act as judge-advocate especially in the capacities of prosecuting official
and adviser to the court. A personal animus against the accused is particularly
unbefitting a judge-advocate in a case where the accused is not represented by coun-
sel. One who, without personal prejudice against the accused, or interest in his con-
viction, has signed the charges as company commander, may not improperly act as
judge-advocate in the case. Ibid., par. 1530.
In the case of an officer tried by general court-martial in 1871 and sentenced to be
dismissed, the judge-advocate was not only a material witness for the prosecution,
but, as the senior first-liutenant in the same regiment with the accused, was the
expectant of promotion to the next vacancy in the grade of captain. In his review
of the case, it was remarked by the Secretary of War that, " while there is no ground
for doubting that the officer charged with this duty performed it with honest and
pure intentions, yet certainly his selection for it was unsuitable, inasmuch as by
military law and usage it has' always been held- that the judge-advocate, should be
free from bias or interest in the result of the proceedings in which he officiates." G.
('. M. O. 5, War Dept., 1871. See also G. C. M. O. No. 41, War Dept., 1875.
1 A judge-advocate is not authorized to entertain charges in the first instance; he
can properly act upon charges — i. e., make service of the same, prepare the case for
trial, etc. — only when the charges are transmitted to him for the purpose by the
officer who has convened the court or detailed him as judge-advocate. Dig. Opin.
J. A. G., par. 1531.
. The judge-advocate is not unfrequently directed to prepare or reframe charges;
but where charges already formally preferred are transmitted to him for prosecu-
tion, he should not assume to modify them in material particulars in the absence of
authority from the convening officer. While he may ordinarily correct obvious
mistakes of form or patent or slight errors in names, dates, amounts, etc., he can not
without such authority make snlixtant'uil amendments in the allegations, or — least of
all — reject or withdraw a charge or specification, or enter a nolle prosequi as to the
same, or substitute a new and distinct charge for one transmitted to him for trial by
the proper superior. Ibid., par. 1532.
A judge-advocate of a court-martial has no authority to place in arrest an officer
or soldier about to be tried by the court or to compel the attendance of the accused
a The last occasions of such employment are believed to have been those of the trial of the persons
charged with complicity in the assassination of President Lincoln, and the trial of Major Haddock,
Prov. Mar. Dept, (see G. C. M. O., 356 and 565, War Dept,, 1865), upon which Hon. J. A. Bingham and
Hon. Roscoe Conkling were, respectively, employed as judge-advocates. For an early case in which
a civilian, who was afterwards a President of the United States, was employed as judge-advocate, see
the reply dated March 7, 1814, of the Secretary of War, Hon. John Armstrong, to the communication
of the "acting special judge-advocate," Hen. Martin Van Buren, submitting questions for the court.
Fo.bes' Trial of Hull.
6 See Gen. Court-Martial Orders No. 5, War Dept., 1871; do. -11, 1875.
22924—08 44
690 MILITARY LAWS OF THE UNITED STATES.
the United Stafes, but, when the prisoner has made his
accused.8 el forp^ea? he shall so far consider himself counsel for the pris-
oner as to object to any leading question to any of the
witnesses, and to any question the answer to which might
tend to criminate himself.1 Ninetieth, Article of War.
before the court by requiring a noncommissioned officer to bring him or otherwise!
these are duties which devolve upon the convening authority or upon the post com
inander or other proper officer in whose custody or command the accused is at the
time. Ibid., par. 1535.
Prosecutor. — Other than the judge-advocate, who by the 90th Article of War, is
"required to prosecute in the name of the United States," our military law and
practice recognize no official prosecutor. The party who is in fact the accuser or the
prosecuting witness is, in important cases, not (infrequently permitted by the court
to remain in the court room and advise with the judge-advocate during the trial if
the latter requests it; and in some cases he has been allowed to be accompanied by
his own counsel. If such a party is to testify, he should ordinarily be the firs: wit-
ness examined; this course, however, is not Invariable. Ibid., par. 2078.
Duty of judge-advocate at the trial.— A. competent judge-advocate will, properly be
left by the court to introduce the testimony in the form and order deemed by "him
to be the most advantageous and generally to bring on cases for trial and conduct
their prosecution according to his own judgment.
The general presumption of law, made in favor of all public officers, in the absence
of affirmative evidence to the contrary, that they duly fulfill their functions, applits
to the judge-advocate. Dig. Opin. J. A. G., par. 1546.
An absence of the judge-advocate from the court during the trial does not per se
affect the validity of the proceedings, but is, of course, to be avoided if possible.
When the judge-advocate is obliged to temporarily absent himself, the court should
in general suspend the proceedings for the time; or, if his absence is to be prolonged,
should adjourn for a certain period. Ibid., par. 1539.
Should the judge-advocate be required to give evidence as a witness, the clerk or
reporter of the court may go on to record his testimony while on the stand; or, if
there be no clerk or reporter, he may record his own testimony as that of any other
witness. Ibid., par. 1540.
The judge-advocate in our practice is entitled to the closing argument or address
to the court, and he may present an address although the accused waives his right
to present any, the function of the judge-advocate at this stage of the proceedings
not being confined merely to a replying to the accused. The judge-advocate, in
his address, is not authorized to read to the court evidence or written statements
not introduced upon the trial and which the accused has had no opportunity to con-
trovert or comment upon. Ibid., par. 1539.
The judge-advocate is entitled by usage to sum up the case and present an argu-
ment at the conclusion of the trial, even though the accused declines to make argu-
ment or statement. The court is not authorized to deny to the judge-advocate this
right to be heard. Ibid., par. 1542.
For the court or the president of the court to place or order the judge-advocate in
arrest would be an unauthorized proceeding. Thecourt, indeed, in a proper case under
Art. 86, might proceed against its judge-advocate as for a contempt. But an arrest
could not be imposed nor a punishment executed in the case of such officer, except
through the convening authority or other competent commander. Ibid., par. 1544.
lDuty of judge-advocate <is counsel for accused. — The duty of the judge-advocate
toward the accused should not be regarded as confined to the limited province of
"counsel for the prisoner" an the sa.ne" is defined in the 90th Article of War. Where
the accused is ignorant and inexperienced and without counsel — especially where he
is an enlisted man — the judge-advocate should take care that he does not surfer upon
the trial from any ignorance or misconception of his legal rights and has full oppor-
tunity to interpose such plea and make such defense as may best bring out the facts,
the merits, or the extenuating circumstances of his case. Ibid., par. 1533.
For the judge-advocate to counsel the accused, when a soldier or inferior in rank,
to plead guilty, must in general be unbefitting and inadvisable. But where such
plea is voluntarily and intelligently made, the judge-advocate should properly advise
the accused of his" right to offer evidence in explanation or extenuation of1 his offense,
and, if any such evidence exists, should assist him in securing it. And w: here no
such evidence is attainable in the case, the judge-advocate should still see that the
MILITARY LAWS OF THE UNITED STATES. 691
1800. The commanding officer of a post where a general
court-martial is convened will, at the request of any pris- 1>ar< °20' A< R-
oner who is to be arraigned, detail as counsel for his
defense a suitable officer, one not directly responsible for
the discipline of an organization serving thereat nor acting
as a summary court. If there be no such officer available,
the fact will be reported to the appointing authority for
action. An officer so detailed should perform such duties
as usually devolve upon counsel for defendant before civil
courts in criminal cases. As such counsel he should guard
the interests of the prisoner by all honorable and legiti-
mate means known to the law, so far as they are not
inconsistent with military relations.1 Par. 686, A. R.
accused has an opportunity to present a "statement," written or verbal, to the court
if he has any desire to do so. Ibid., par. 1534.
Opinion. — It is strictly the proper practice for a judge-advocate not to give his
opinion upon a point of law arising upon a military trial, unless the game may be
required by the court. This practice, however, is of ten departed from ; and the opinions
of judge-advocates, suitably tendered, are in geneial received and entertained by the
court without objection, whether or not formally called for. But where the court
(Joes object to the giving of an opinion by the judge-advocate, he is not authorized to
attempt to give it, and, of course, not authorized to enter it upon the record. Whether
the fad — that the opinion was offered and objected to by the court — shall be entered
upon the record, is a matter for the court alone to decide. It is, however, certainly
the better practice that all the proceedings, even those that are irregular, which
transpire in connection with the trial should be set out in the record for the inspec-
tion of the reviewing authority. Ibid., par. 1536.
At the trial of Major Porter in 1857 the court refused to admit an argument of the
judge-advocate in support of an objection to an application by the defense for delay.
This action was disapproved by the Secretary of War, whose decision was that "it
was the duty of the judge-advocate to make the objection, and the argument by
which he sustained it was very proper. It was a part of the proceedings which
ought to have been entered upon their record. G. O., No. 5, A. G. O., 1857.
1 Counsel for accused. — An officer or soldier put upon trial befoio a court-martial is
not entitled as of right to have counsel present with him to assist him in his defense,
but the privilege is one which is almost in variably conceded; (a) and where it is unrea-
sonably refused, such refusal may constitute ground for the disapproval of the pro-
ceedings. A court-martial, however, is not required to delay an unreasonable time
to enable an accused to provide himself with counsel. Dig. Opin. J. A. G., par. 984.
While reasonable facilities for procuring such counsel as he may desire should be
afforded an accused, his claim must be regarded as subordinate to the interests of the
service. Thus where an accused officer applied to the department commander who
had convened the court to authorize a particular officer whom he desired as counsel
to act in that capacity, and this officer could not at the time be spared from his regu-
lar duties without material prejudice to the public interests, held that the commander
was justified in denying the application, and further that the validity of the subse-
quent proceedings and sentence in the case was not affected by such denial, (b) Ibid.,
par. 985.
A military court has no authority, analogous to that sometimes exercised by civil
a Compare, on this subject, People r. Daniell, 6 Lansing, 44; People r. Van Allen, 55 N Y., 31.
b Held, thatpar. 1037, A. K. 1901, providing for the detail by the commander o£ a post at which a general
court-martial is ordered to sit of a suitable officer of his command to act as counsel for prisoners to
be arraigned, if requested by them, was not to be construed as sanctioning the detail or voluntary
appearance of a post commander himself in such capacity at hisown post. Dig. Opin. J. A. G., par. 985.
See, also, for duties of counsel so detailed, par. 1037 A. R., 1901; circulars 5 and 8, H. Q. A., 1894; and
Bavis's Military Law, pp. 36, 37.
The rule that an accused person is not entitled to counsel as of right grows out of the fact that
courts-martial are without the authority possessed by civil courts having criminal jurisdiction of
awarding a fee to counsel by way of compensation for his services, nor can a military tribunal of
any sort assign counsel to the defense of a particular accused person. This for the reason that courts-
martial are quite with«ut the authority to require the services of civilian attorneys.
692 MILITARY LAWS OF THE UNITED STATES.
EMPLOYMENT OF REPORTERS; INTERPRETERS.
Sl?°r3tei863 c 1801t Tne judge-advocate of a military court shall have
ras- Junels1!^ Power *° appoint a reporter, who shall record the proceed-
o^J58' s< 2> v> 18' p' ings of, and testimony taken before, such court, and may
see. 1203, K.S. set down the same, in the first instance, in short hand.
The reporter shall, before entering upon his duty, be sworn,
or affirmed, faithfully to perform the same.1
THE TRIAL.
CITALI.EXGES.
88t1iArtgonYar 1802. Members of a court-martial may be challenged by
a prisoner, but only for cause stated to the court. The
court shall determine the relevancy and validity thereof,
and shall not receive a challenge to more than one member
at a time.2 Eighty-eighth Article of War.
courts in criminal cases, to assign counsel to an accused unprovided with counsel.
Nor can such a court excuse one of its members to enable him to act as counsel for
an accused. Ibid., par. 987. See, for a case in which this was attempted, General
Court-Martial Orders, No. 62, War Dept, 1874.
An application by an accused officer to be furnished, at the expense of the United
States, with civil-counsel to defend him on his trial by court-martial remarked upon
as unprecedented and not to be entertained. Par. 1072, A. R., 1901, relates to no such
a case. No authority exists for the payment, by the United States, of civil counsel
employed by an officer to defend him on his trial by court-martial. Ibid., par. 991.
lfThe power to appoint the reporter is vested exclusively in the "judge-advocate"
and can not be exercised by the court. The employment, however, of a stenographic
reporter should be resorted to only in an important case. Dig. Opin. J. A. G., par. 2168.
The description, "the judge-advocate of a military court," does not strictly
include the recorder of a court of inquiry, especially as a court of inquiry is not prop-
erly a court at all. The same reason, however, often exists for appointing a reporter
for a court of inquiry as for a general court-martial, and it is understood that the
Pay Department recognizes and pays the accounts of reporters appointed by reporters
of courts of inquiry. Ibid., 659, par. 2.
The employment of a stenographic reporter, under section 1203 Revised Statutes,
is authorized for general courts only, and in cases where the convening authority
considers it necessary. The convening authority may also, when necessary, authorize
the detail of an enlisted man to assist the judge-advocate of a general court in pre-
paring the record. Par. 1062, A. R., 1901.
There is no authority for the employment of a civilian clerk for a court-martial, other
than the "reporter" authorized by Sec. 1203, Rev. Sts., and referred to in pars. 958
and 1062, Army Regulations. An enlisted man may be detailed as such clerk under
par. 1063. A court-martial, member of court, or judge-advocate can not of course
lawfully communicate to a reporter or clerk, by allowing him to record the same or
otherwise, the finding or sentence of the court. Before proceeding to deliberate
upon its finding, the court should require the reporter or clerk, if it has one, to with-
draw. But the fact that the finding or sentence, or both, may have been made
known to the reporter or clerk of a court-martial can not affect the legal validity of
its proceedings or sentence.
The statute does not indicate by whom the reporter shall be sworn. In practice
he is sworn by the judge-advocate, a form of oath being prescribed in the MANUAL
FOR COURTS-MARTIAL. If the same party is employed as a reporter for more than one
case, he should, properly, be sworn anew in each case. The reporter should be
excluded from the court during its deliberations and not permitted to record the
findings or sentence. Ibid., par. 2169.
2This article authorizes the exercise of the right of challenge before all courts except
field officers' courts and summary courts. These courts are not subject to be chal-
MILITARY LAWS OF THE UNITED STATES. 693
CONTINUANCES.
1803, A court-martial shall, for reasonable cause, grant
a continuance to either party, for such time, and as often,
as may appear to be just: Provided, That if the prisoner
be in close confinement, the trial shall not be delayed for-
a period longer than sixty days.1 Ninety -third Article of
War.
lenged, because, being composed of but one member, there is no authority provided
which is competent to pass upon the validity of the challenge. Dig. Opin. J. A. G.,
par. 234.
The article imposes no limitation upon the exercise of the right of challenge other,
than that " more than one member shall not be challenged at a time."' Thus while
the panel, or the court as a whole, is not subject to challenge, yet all the members
may be challenged provided they are challenged separately. The article contains no
authority for challenging the judge- ad vocate. Ibid., par. 248.
Courts' should be liberal in passing upon challenges, but should not entertain an
objection which is not specific, or allow one upon its mere assertion by the accused,
without proof and in the absence of any admission on the part of the member. A
positive declaration by the challenged member to the effect that he has no prejudice
or interest in the case will, in general, in the absence of material evidence in support
of the objection, justify the court in overruling it. Ibid., par. 245.
It is not necessary, though usual and proper, for a member to withdraw from the
court room on being challenged and pending the deliberation on the objection. Ibid.,
par. 244.
An accused challenged the entire court on the ground that the convening officer
was ' ' accuser. ' ' Held properly overruled ; the array can not be challenged at military
law. The article declares that " the court * * '• shall not receive a challenge to
more than one member at a time." Ibid., par. 250.
Where, before arraignment, the accused, an officer, without having personal knowl-
edge of the existence of ground of challenge to a member, had credible hearsay infor-
mation of its existence, held that he should properly have raised the objection before
the members were .sworn, and that the court was not in error in refusing to allow
him to take it at a subsequent stage of the trial. Ibid., par. 246.
The fact that a sufficient cause of challenge exists against a member, but, through
ignorance of his rights, is not taken advantage of by the accused, or if asserted is
improperly overruled by the court, can affect in no manner the validity in law of the
proceedings or sentence, though it may sometimes properly furnish occasion for a dis-
approval of the proceedings, etc., or a remission in whole or in part of the sentence, (a)
Ibid., par. 247.
A court-martial can not relieve or " excuse" a member except upon a challenge
duly interposed and sustained under this article. The fact that a member has been
absent from the court for several days and has not heard the testimony meanwhile
taken constitutes no legal ground for excusing him by the court. Ibid., par. 251.
1 In making an application for a continuance or postponement under this article,
on account of the absence of a witness, such application should be supported by a
duly executed affidavit. (6) It should, however, in all cases require that the desired
evidence appear or be shown to be material, and not merely cumulative (c), and
that to await its production will not delay the trial for an unreasonable period. It
should also, in general, before granting the continuance, be assured that the absence
aSoe opinion of the Attorney-General of January 19, 1878 (XV Opins., 432), in \yhich the opinion,
xpressed by the Judge-Advocate-General in the most recent of the cases upon which this paragraph
is bused — that the fact that one of the charges upon which the accused was convicted was preferred
by a member of the court who also testified as a witness on the trial (but who, though clearly subject,
to objection, was not challenged by the accused) could not affect the validity of the sentence of dis-
missal after the same had been duly confirmed— is concurred in by the Attorney-General. And to a
similar effect see Keyes v. U. S., 15 Ct. Cls., 532; ibid., 137 U. S., 224.
In G. C. M. 0. 88, Department of Dakota, 1878, the point is noticed that where a challenge interposed
by the accused has been improperly disallowed a subsequent plea of guilty is not to be treated as a
waiver of the advantage to which he may be entitled by reason of the improper ruling.
6 It is not the practice of courts-martial to admit counter affidavits from the opposite party as to
what the absent witness would testify. And as to the civil practice, see Williams v. State, 6 Nebraska,
334.
c Compare PeooU; r. Thompson, 4 Cal., 238; Parker v. State, 55 Miss., 414.
694 MILITARY LAWS OF THE UNITED STATES.
1804- The judge-advocate shall administer to each mem-
ber of the court, before the}T proceed upon any trial, the
following oath,1 which shall also be taken by all members
of regimental and garrison courts-martial: You, A B, do
swear that you 'will well and truly try and determine,
according to evidence, the matter nvw before you, between
the United States of America and the prisoner to be tried,
and that you will duly administer justice, without par-
tiality, favor, or affection, according to the provisions of
the rules and articles for the government of the armies
of the United States, and, if any doubts should arise, not
explained by said articles, then according to your conscience,
the best of your understanding, and the custom of war in
like cases; and you do further swear that you will not
divulge the sentence of the court until it shall be published
by the proper authority, except to the judge-advocate; neither
will you disclose 01* discover the vote or ojjinion of any par-
i>f the witness is not owing to any neglect on the part of the applicant. This feature,
however, will not be so much insisted upon in military as in civil cases (a) .
Where "reasonable cause" is, in the judgment of the court, exhibited, the party
is entitled to some continuance under the article (6). A refusal, indeed, by the court
to grant such continuance will not invalidate the proceedings, but, if the accused has
thus been prejudiced in his defense, may properly constitute good ground lor disap-
proving the sentence, or for mitigating or partially remitting the punishments. Dig.
Opin. J. A. G., par. 276.
Where an accused soldier, by reason of his regiment having been moved a long
distance since his arrest, was separated at his trial from certain witnesses material
to his defense, held that he was entitled to a reasonable continuance for the purpose
of procuring their attendance or their depositions. Ibid., par. 277.
That the charges and specifications upon which an accused is arraigned differ in a
material particular from those contained in the copy served upon him before arraign-
ment may well constitute a sufficient ground for granting him additional time for the
preparation of his defense. Ibid., par. 278.
Where, after arraignment, a material and substantial amendment is allowed by the
court to be made by the judge-advocate in a specification, the effect of which amend-
ment is to necessitate or make desirable a further preparation for his defense on the
part of the accused, a reasonable postponement for this purpose will, in general, prop-
erly be granted by the court. Ibid., par. 279.
It is, in general, good ground for a reasonable continuance that the accused needs
time to procure the assistance of counsel, if it is made to appear that such counsel
can probably be obtained within the time asked, and that the accused is not charge-
able with remissness in not having already provided himself with counsel. Ibid.,
par. 280.
1 This article makes the administering to the court of the form of oath thereby
prescribed an essential "preliminary to its entering upon a trial. Until the oath is
taken as specified, the court is nonqualified "to try and determine." The arraign-
ment of a prisoner and reception of his plea — which is the commencement of the
trial — before the court is sworn, is without legal effect. The article requires that
a A military accused can not be charged with laches in not procuring the attendance at his trial of
a witness who is prevented from being present by superior military authority. Thus in a case in
G. O. 63, Department of Dakota, 1872, an accused soldier was held entitled to a continuance till the
return of material witnesses then absent on an Indian expedition.
6 It would properly be so held upon common-law principles, even independently of the positive
terms of the article. In Rex v. D'Eon, 1 W. Black., 514, it was declared by Lord Mansfield that " No
crime is so great, uo proceeding so instantaneous, but that, upon sufficient grounds, the trial may be
put off."
MILITARY LAWS OF THE UNITED STATES. 695
ticular member of the court-martial, unless required to give
evidence 1 7iereof, as a witness, hy a court of justice, in a due
course of law. So kelp you God. Eighty-fourth Article 84 Art. of war.
of War.
1805. When the oath has been administered to the mem- . °,atlVf the
judge-advocate.
bers of a court-martial, the president of the court shall
administer to the judge-advocate, or person officiating as
such, an oath in the following form: You, A B, do swear
that you will not disclose or discover the vote or opinion of
any particular member of the court-martial, unless required
to give evidence thereof, as a witness, by a court of justice,
in due course of law.; nor divulge the sentence of the court
to any hut the proper autJiority, until it shall he duly dis-
closed by the same. So help you God. Eighty -fifth Article 85 Art- of War-
of
BEHAVIOR OF MEMBERS.
1806. All members of a court-martial are to behave with m^5b5^io* of
decency and calmness.1 Eighty-seventh Article of War. 8? Art, of war.
the oath shall be taken not by the court as a whole, but by "each member." Where,
therefore, all the members are sworn at the same time, the judge-advocate will pref-
erably address each member by name, thus, ''you, A. B., WD'., E. F., etc., do sev-
erally swear," etc. A member added to the court, after the members originally
detailed have been duly sworn, should be separately sworn by the judge-advocate in
the full form prescribed by the article; otherwise he is not qualified to act as a mem-
ber of the court. A member who prefers it may be affirmed instead of sworn. Dig.
Opin. J. A. G., par. 225.
The members are sworn to try and determine the matter before them at the time of
the administering of the oath. In a case therefore, where, after the court had been
sworn and the accused had been arraigned and had. pleaded, an additional charge,
setting forth a new and distinct offense, was introduced into the case, and the accused
was tried and convicted upon the same; held that, as to this charge, the proceedings
were fatally defective, the court not having been sworn to try and determine such
charge. (a) Ibid., par. 226.
It is a departure from the engagement expressed in the body of the oath — to try
and determine according to evidence, and administer justice according to the Articles
of War, etc., — for a court martial to determine a case either upon personal knowl-
edge of the facts possessed by the members and not put in evidence, or according to
the private views of justice of the members independently of the provisions of the
code.
The words "a court of justice" are deemed to mean a civil or criminal court of
the United States, or of a State, etc., and not to include a court-martial. A case can
hardly be supposed in which it would become proper or desirable for a court-martial
to inquire into the votes or opinions given in closed court by the members of another
similar tribunal. (b)
lPresiding officer. — No special rank or qualifications are required for the position of
president of a military court, (c) In our practice the president is not appointed as
ft See General Court-Martini Orders No. 39, War Dept., 1867; G. O. No. 13, Northern Department,
J <S(i 1 .
b The only case which has been met with in which the members of a court-martial have been
required to disclo.se their votes by the process of a civil court, is that of in re Mackenzie, 1 Pa. Law
J. R., 356, in which the members of a naval court-martial were compelled, ngauist their objections,
to state their votes as given upon the findings at a particular trial.
In the present corresponding British article, the words "or a court-martial" are added after the
words "a court of justice."
cln the British service certain important powers are vested by law and regulations in the president
of a court-martial who is appointed in the order convening the court. In our service the presiding
officer becomes .such solely by reason of his .seniority in point of rank, and he may exercise as such
iding officer only such powers as are usually exercised by the presiding officers of deliberative
696 MILITARY LAWS OF THE UNITED STATES.
such; he is simply the senior in rank of the members present and he presides by
virtue of his seniority alone. If the senior of the officers detailed in the convening
order is not presentVith the court at the original organization, the next senior
present becomes president; so, if the officer who presided at the beginning of a trial
is at a subsequent stage of the proceedings relieved or compelled to be absent by
sickness, etc., the next ranking officer present presides as a matter of course, and the
senior officer present with the court at the termination of the trial authenticates the
proceedings as president. Dig. Opin. J. A. G., par. 2043.
While a special authority — that of swearing the judge-advocate — is devolved upon
the president of a military court by statute (the 85th Article of War (a) ), such officer
has in other respects, as in performing the usual duties of a presiding officer, in
authenticating the proceedings with his signature and in communicating with the
convening officer or other commander, no original authority but acts simply as the
representative and "organ" of the court. (6) Ibid., par. 204-4.
In deliberations on questions raised upon a trial, as well as in the finding and the
adjudging of the sentence, the presiding member is on a perfect equality with the
other members. [See paragraphs 1020 and 1021, Army Regulations of 1895]. He
has no casting vote, nor, if the vote is even, does his vote have any greater or other
weight or effect than that of any other member.
The president of a military court has no command as such. As president he can
not give an order to any other member. As the organ of the court he gives of course
the directions necessary to the regular and proper conduct of the proceedings; but a
failure to comply witrTa direction given by him while it may constitute "conduct to
the prejudice of good order and military discipline," can not properly be charged
as a "disobedience of a lawful command of a superior officer" in violation of
Article 21. (c) Ibid., par. 2045.
Absent members. — A member of a court-martial, though, strictly, answerable only to
the convening authority for a neglect to be present at a session of the court, will
properly, when prevented from attending, communicate the cause of his absence to
the president or judge-advocate, so that the same may be entered in the proceedings.
Where a member, on reappearing after an absence from a session, fails to offer any
explanation of such absence, it will be proper for the president of the court to ask of
him such statement as to the cause of his absence as he may think proper to make.
It need scarcely be added that the absence of a member does not affect the legality
of the proceedings, provided a quorum of members remain, (d} Dig. Opin. J. A. G.,
par. 1662.
A court-martial can not relieve or "excuse" a member except upon a challenge
duly interposed and sustained under this article. The fact that a member has been
absent from the court for several days, and has not heard the testimony meanwhile
taken, constitutes no legal ground for excusing him by the court. ' bid", par. 251.
Performance of other duties. — Officers detailed and serving as members of courts-
martial are not in general properly ordered to perform other duties while the court
remains in session or not adjourned, (e) And they are not to be considered as any more
subject to such orders now that they are no longer allowed a special compensation for
their services than they were formerly. (/) In an emergency indeed arising out of a
state of war, or other public exigency, additional service may be imposed upon such
officers; in a case of this kind, however, their service on the court would, preferably,
be temporarily suspended. Members of inferior courts-martial are not unfrequently
required to perform additional duty because of the limited number of officers at the
post,
Protests. — Where the majority of the members of a court-martial have come to a
decision upon any question raised in the course of the proceedings, or upon the find-
ing or sentence, no individual of the minority, whether the president or other mem-
ber, is entitled to have a protest made by himself against such decision entered upon
the record. The conclusions of the court (except in cases of death sentences, where
a concurrence of two-thirds is required) are to be determined invariably bv the
vote of the majority of its members, and it is much less important that individual
members should have an opportunity of publishing their personal convictions than
aThe further function devolved upon him by Article 52 is not known to have ever been exercised
in our service; the article itself is ;i dead letter, as is also Article 53 in pan materia.
6The language of paragraph looo, Army Regulations of l&sy. was taken from the order of Secretary
Crawford in his review of the case of Brevet Lieutenant-Colonel Backenstos, in G. O. 14, War Dept.,
1850.
cFor the president of a court-martial to assume to adjourn the court against the vote of the majority
of the members would be an unauthorized act and a grave irregularity, properly subjecting him to a
charge under the C2d Article. Dig. Opin. J. A. G., par. 204G.
dVII, Opin. Att. Gen., 101.
eSee paragraph 1019 A. R., 1901.
/XIII Opin. Att. Gen., 526; sees. 1137, 113S, A. R. 1803; sec. 2-1. act of July 15, 1870.
MILITARY LAWS OF THE UNITED STATES. 697
CONTEMPT OF COURT.
1807. The court-martial may punish at discretion any co^"tempts of
person who uses any menacing words, signs, or gestures 86 Art- of War-
in its presence, or who disturbs its proceedings by any
riot or disorder.1 Eighty-mxth Article of War.
that the action of the court should appear upon the formal record as that of the aggre-
gate body, and should carry weight and have effect as such.(«) Nor can a protest
(against the rinding or otherwise) by a minority of the members be appended to the
record, on a separate paper. Ibid., par. 2079.
1 The power of a court-martial to punish under this article being confined prac-
tically to acts done in its immediate presence, such a court can have no authority to
punish, as for a contempt, a neglect by an officer or soldier to attend as a witness in
compliance with a summons, (b) Dig. Opin. J. A. G., par. 230.
A court-martial has none of the common-law power to punish for contempt vested
in the ordinary courts of justice, but only such authority as is given it by this arti-
cle. Thus held that a court-martial wras not authorized to punish, as for a contempt,
under this article (or otherwise), a civilian witness duly summoned and appearing
before it, but, when put on. the stand, declining (without disorder) to testify. Ibid.,
par. 231.
The authority of a court-martial to punish as for a contempt being confined by
the code (article 86) to cases of acts of menace or disorder committed in its presence,
such a court would not be empowered to punish, as being in contempt, a witness
appearing before it whose attendance it had been necessary to compel by process of
attachment. (Ibid., par. 232.
Where a contempt within the description of this article has been committed, and
the court deems it proper that the offender shall be punished, the proper course is
to suspend the regular business, and after giving the party an opportunity to be
heard, explain, etc., (c) to proceed — if the explanation is insufficient — to impose a
punishment, resuming thereupon the original proceedings. The action taken is
properly summary, a formal trial not being called for. Close confinement in quar-
ters or in the guardhouse during the trial of the pending case, or forfeiture of a
reasonable amount of pay, has been the more usual punishment. Instead of pro-
ceeding against a military person for a contempt in the mode contemplated by this
article, the alternative course may be pursued of bringing him to trial before a new
court on a charge for a disorder under article 62. (d} Ibid., par. 233.
Where a civilian witness is brought before a court-martial, but refuses to testify,
the court is not invested with any inherent power to punish the witness in such
case, either summarily or otherwise, as for a contempt, but must proceed in accord-
ance with the method prescribed in the act of March 2, 1901. Such power can only
be exercised by it when given by the positive terms of some statute. Section 1202
of the Revised Statutes arms the court with authority to compel the witness to
appear and testify as far as this can be done \)y process; but in securing his testimony
the court is restricted to the means which it is authorized to employ. It can not
inflict any punishment where the power to impose it is .not clearly conferred by
Congress. XVIII Opin. Att. Gen., 278. Power to compel the giving of testimony has
upon several occasions been conferred upon military tribunals. Article 5, section
14, of the articles adopted by resolution of Congress of September 20, 1776, contained
the requirement that "all persons called to give evidence in any cause before a
court-martial, who shall refuse to give evidence, shall be punished for such refusal at"
the discretion of such court-martial." The terms of this article were broad enough
to include civilian witnesses, and it was doubtless meant to apply to them. It was
repealed, however, by the resolution of Congress of May 31, 1786. Section 4 of the
act of April 8, 1814 (3 Stat. L., 135), conferred similar authority upon courts-martial
for the trial of members of the militia forces; but thin statute was limited by its
terms to the period of the then existing war. Prior to the year 1800 no power
existed in the British service to secure the attendance of witnesses- or to compel them
a Simmons, see. 469; Hough, Precedents, p. 473. note 4.
b As to the power of courts of inquiry to punish for contempt see par. 1864, pout, note 2.
cSee G. C. M. O. 37, Fourth Military' District, 1868.
d Com pare Samuel, 634; Simmons, sec. 434. The latter course has not unfrrqueiitly been adopted in
our practice.
For a case in which the accused, being a commissioned officer, was summarily proceeded against
for the offense of contempt of court see G. C. M. O. No. 36, War Dept., 1870.
698 MILITARY LAWS OF THE UNITED STATES.
TH E A RR A IG X M E NT.
ingrmute.rstand" 1808- When a prisoner, arraigned before a general
89 Art. of w»r. court-martial, from obstinacy and deliberate design, stands
mute, or answers foreign to the purpose, the court may
proceed to trial and judgment, as if the prisoner had
pleaded not guilty.1 Eighty -ninth Article of War.
to testify in the event of their voluntary appearance. Power to issue compulsory
process was conferred by statute in the mutiny act for the year 1800, and in 1830 trm
power to compel civilian witnesses to testify was conferred by a similar statute, author-
izing such witness to be attached in the court of the King's Bench for such ia'lmv to
testify. Clode, Military Law, 125.
1 The provisions of this article in respect to an accused person standing mute, con-
template a formal arraignment of the prisoner in accordance with the rules of pro-
cedure prescribed for the courts of the United States having criminal jurisdiction.
An accused may, therefore, follow one of four courses in reply to the charges read
by the judge-advocate as a part of his arraignment, and may*: (a) stand mute, in
which event the provisions of the Eighty-ninth Article of War become operative, (b)
confess in open court; (c) submit one of the special pleas, presently to be described;
or (d) plead to the general issue ("guilty" or "not guilty"), (a)
It is a general rule of criminal law that where the accused pleads guilty, no testi-
mony on the merits is to be introduced. But, on military trials the court, even
against the objection of the accused, may, in its discretion, call upon the judge-
advocate to offer evidence, or approve of his doing so, in a case where such evidence
is deemed to be essential to the due administration of military justice, (b) An accused
can not be allowed, by pleading guilty, to shut out testimony where the interests of
the service require its introduction. But in all cases where evidence is introduced
by the prosecution after a plea of guilty, the accused should of course be afforded an
opportunity to offer rebutting evidence, or evidence as to character, should he desire
to do so. Dig. Opin. J. A. G., par. 1988. See also ibid, par. 1999.
Wherever, in connection with the plea of guilty, a statement or confession, whether
verbal or written, is interposed by the accused, both plea and statement should be
considered together by the court; and if it is to be gathered from the statement that
evidence exists in regard to the alleged offense which will constitute a defense to the
charge, or relieve the accused from a measure of culpability, the court will properly
call upon the judge-advocate to obtain and introduce such evidence, if practicable.
Ibid, par. 1991. See also ibid., par. 1992.
By a plea of "guilty" the accused, if a military person, submits himself to the
jurisdiction of the court, admitting that it has jurisdiction over both person and
a If a man, being put on his trial, .says nothing at all in cases of felony, the court, says Lord Chief
Justice Hale, ought, ex officio, to empanel a jury and swear it, as an inquest of othce, to inquire
whether he stands mute, 'a- visitatione Dei (of the act of God), or of malice. Adye, 131; Hale Hist.
PI. Cor., 317. Where an accused stands mute ex visitatione Dei,* a court-martial would be authorized
to resort to a similar course cf procedure; or, the trial could be desisted from until the facts had bet-n
represented to the reviewing authority for such action as he might deem proper in view of the pecu-
liar circumstances of the case. Where the accused stands mute through malice, or answers foreign
to the purpose, the terms of the article become operative and the trial proceeds as if a plea of not
guilty had been formally entered. f
\Vhere an accused declined to plead on the ground that he was so much under the influence of
liquor at the time of the acts charged that he could riot remember what occurred, held that the court
-properly directed a plea of "not guilty" to be entered. Dig. Opin. J. A. G., par. 1999.
For the method of executing the judgment of pe ine forte ct dure, see Adye, p. 134, Hale Hist, PI. Cor.,
219. By 33 Henry VIII, those who stood mute, who vere notorious felons, were to have "strong and
hard imprisonment;" by 12 George III, ch.20, standing mute through malice was made equivalent to a
conviction upon evidence or confession. At present an accused who "refuses to plead, or does not
plead intelligibly," is regarded as having pleaded" not guilty." Army act of 1884, p. (>03.
b The principle that, in cases in which the plea is guilty, the court should take testimony, where
necessary to the comprehending of the facts and thedoing of justice, though apparently in a measure
lost sight of at a later period, was clearly enunciated in early General Orders of the War Department.
Thus, in G. 0. 23 of 1830, Major-General Macomb (commanding the Army) expresses himself as fol-
lows: "In every case in which a prisoner pleads guilty, it is the duty of the court-martial, notwith-
standing, to receiveand to report iri its proceedings such evidence HS may afford a full knowledge of the
circumstances, it being essential that the facts and particulars should be known to those whose duty
it is to report on the case, or who have discretion in carrying the sentence into effect." And see G.
O.21 of 1833 to a similar effect.
* For a case of standing mute, ex rixitalionc Dei, see Adye, p. 132.
fFora casein which an accused person declined to plead, thus bringing this article in to operation,
see General Court-Martial Orders No. 91, War Department, 1874.
MILITARY LAWS OF THE UNITED STATES. 699
offense. In re Davidson, 21 Fed. Rep., 618: in re Zimmerman, 30 ibid., 176; Van-
derheyden v. Young, 11 Johns, 160.
Withdrawal of plea. — A court-martial is authorized, in any case, in its discretion, to
permit an accused to withdraw a plea of not guilty, and substitute one of guilty, and
vice versa, or to withdraw either of these general pleas and substitute a special plea.
And wherever the accused applies to be allowed to change or modify his plea, the
court should in general consent, provided the application is made in good faith and
not for the purpose of delay, and to grant it will not result in unreasonably protracting
the investigation. Dig. Opin. J. A. G., par. 1994.
Pleas to t7ie jurisdiction. — An objection to the jurisdiction of the court — that is, of its
power to try a particular case, as where, for example, the convening officer is the
accuser or prosecutor, or is otherwise without power to constitute the court, or where
the accused is not amenable to military jurisdiction — will properly be met by a
formal plea to the jurisdiction, which must be decided by the court on the evidence
submitted by both parties in the trial of the issue set forth in the defendant's plea, (a)
Pleas in abatement. — Objections to the charges or specifications in matters of form
should be taken advantage of by special pleas in the nature of pleas in abatement, or,
better, by motion to strike out. Such are objections to the specifications as inartificial,
indefinite, or redundant; or as misnaming the accused (or other person required to be
specified) or misdescribing him as to his rank or office; or as containing insufficient
allegations of time or place, etc. In such cases the objection should be raised by a
special plea in abatement, or by motion, in order that errors capable of amendment
may be amended (6) on the spot by the judge-advocate, and — the plea of not guilty
(or guilty) being then made— the trial may proceed in the usual manner. Objec-
tions of this class, not thus taken, will properly be considered as waived by the plea
of guilty or not guilty, and their existence will not then affect the validity of the
proceedings or sentence. Dig. Opin. J. A. G., par. 1995.
Where without preliminary objection the accused pleads guilty or not guilty to
a specification, in which he is incorrectly named or described, such plea will be
regarded as an admission by the accused of his identity with the person thus desig-
nated, and he can not thereafter object to the pleadings on account of misnomer or
misdescription. Ibid.
A misnaming or misdescription of the rank of the accused in the specification
should be taken advantage of by exception in the nature of a plea in abatement.
Where not objected to, the error is immaterial after sentence, provided the accused
is sufficiently identified by the plea, testimony, etc. It is not essential to state in a
specification the full Christian name of the accused, or other party required to be
indicated. Only such name or initial need be given as will be sufficient unmistakably
to identify the party. Ibid., par. 706.
A failure, at the arraignment, to take notice of a variance between the form of a
specification to which the accused is called upon to plead and such specification as it
, appeared in the copy of the charges served at his arrest is a waiver of the objection,
and the same can not be taken advantage of at a subsequent stage of the proceedings.
Ibid., par. 732.
Pardons. — The President is empowered, by Art. II, sec. 2, § 1, of the Constitution
"to grant pardons for off ences against the United States" ; and a pardon, like a deed,
must, in order to take effect, be delivered to and accepted by the party to whom it
is granted (c). Dig. Opin. J. A. G., par. 1866.
Pleading. — For a pardon to be operative as a bar to prosecution, it must be formally
pleaded — that is, the original instrument must be produced and submitted to the
inspection of the court; this to enable the court to determine whether the offense
with which the accused is charged and that named in the pardon are the same. If
the pardon be by proclamation, the burden rests upon the accused of showing that
his case falls within the terms of the amnesty set forth in the proclamation (U. S. v.
Wilson, 7 Peters, 150). Where a conditional pardon is pleaded, the burden rests
upon the accused of showing that all the conditions named therein have been ful-
a Objections to the charges and specifications on account of matters of substance— as that they
do not contain the necessary allegations, or otherwise do not set forth facts constituting military
offenses— should properly be made at the outset of the proceedings by a special plea in the nature of
a demurrer, or they will in general be regarded as waived.
So, objections going to the legal constitution or composition of the court, or to its jurisdiction, should
also properly be specially presented when the accused is first called upon to plead; valid objections
of this radical character, however, are not ivaived if the accused, instead of submitting a special plea,
pleads over to the merits, since consent can not make Irg-al that which js illegal, or, in a criminal case,
confer jurisdiction where none exists in law.
b Courts-martial have no authority to arraign a prisoner upon charges other than those upon which
he has been ordered for trial, except what is manifestly a mere clerical error, unless such altered
charges receive the sanction of the convening authority. Simmons, ir,,s.
cU. S. v. Wilson, 7 Peters, 150; In reDu Puy, 3 Benedict, 307- VI Opin. Att. Gen., 40&
700 MILITARY LAWS OF THE UNITED STATES.
filled or otherwise complied with. Haym r. U. S., 7 Ct. Cls., 443; Waring v. U. S.,
ibid., 501; Scott v. U. S., 8 ibid., 457; Dig. Opin. J. A. G., par. 1997, 1998. . See, also,
the title "The Pardoning Power" in the chapter entitled THE EXECUTIVE.
Constructive pardons. — While to restore to or place upon duty an officer or soldier,
when under arrest or charges on account of an alleged offense, would not probably
in this country, to the same. extent as in England (a), be regarded as operating as a
condonation of the offense, the promotion of an officer Avhile under arrest on charges,
has been viewed as a constructive pardon of the offense or offenses on account of
which he has been arrested (b). But held that such a promotion could not operate
as a pardon of other offenses committed by him, of the commission of which no
knowledge was had by the Executive at the date of the promotion. Dig. Opin. J. A.
G., par. 1873.
While ordering or authorizing an officer or soldier, when under sentence, to exercise
a command or perform any other duty inconsistent with the continued execution of
his sentence, has been viewed as a constructive pardon, (c) held that to allow an officer,
while under a sentence of suspension from rank, to perform certain slight duties in
closing his accounts with the United States could not be regarded as having any
such effect. Ibid.
An officer charged with certain offenses in violation of specific articles of war,
pleaded as to two specifications that he had been pardoned by his post commander.
The pleas in bar, thus submitted by the accused, were sustained by the court, but
were disapproved by the reviewing authority (the Secretary of War), upon the
ground that the post commander was without authority to grant pardons in cases in
which commissioned officers were the offenders. G. "C. M. O., No. 13, War Dept.,
1871.
Conditional pardons. — It is settled that a pardon may be conditional — may be granted
upon a condition precedent or subsequent, (d) Thus, where the President, by his
proclamation of March 11, 1865, granted a pardon to all deserters "on condition
that" they duly returned (within a certain time stated) to their regiments, etc.. and
served the remainder of their original terms and, in addition, a period equal to the
time lost by desertion — held that a soldier who duly returned under this proclamation,
but after remaining with his regiment a portion of the period indicated, abandoned
the service and went to his home, was liable (the legal period of limitation fixed by
the one hundred and third article of war not having expired) to be brought to trial
for his original desertion; the condition subsequent upon which his pardon for the
same had been extended not having been performed.
Statutes which operate to trespass upon or diminish the constitutional power of the
President to pardon offenses against the United States are strictly construed in their
application. Acts of mercy, therefore, which may be appropriate when proceeding
from the President, in whom the pardoning power is vested by the Constitution,
are otherwise regarded when they originate with a military officer whose power in
respect to pardons is measured by the express terms of the statutes which confer it.
Judgments on special pleas. — Where a special plea is set up in behalf of the defendant
as a plea to the jurisdiction, or in bar of trial, or in abatement, or a special plea in
the nature of a demurrer, and the court, after a trial of the issue outlined in the plea,
decides that it has not been sustained, the judgment of the court is required to be
that the accused answer over — that is, that he plead the "general issue" of guilty
or not guilty.
Statutes of limitation. — A limitation in point of time in military offenses is properly
matter of defense to be specially pleaded and proved. By pleading guilty the accused
is assumed to waive the right to plead the limitation by a special plea in bar. But
under a plea of not guilty the limitation may be taken advantage of by evidence
showing that it has taken effect. Dig. Opin. J. A. G., par. 320; in re Bogart, 2 Saw-
yer, 397; in re White, 17 Fed. Rep., 723; in re Davison, 21 ibid., 18; in re Zinimer-
inan, 30 ibid., 17; and compare U. S. v. Cooke, 17 Wallace, 168.
Facts and circumstances which are properly matters of evidence are not properly
legitimate subjects of pleas; as, for example, circumstances going to extenuate the
offense. Thus held, that good conduct of the accused in battle subsequent to the com-
mission of the offense charged could not properly be presented in the form of a plea.
So held that the fact that the charge was preferred through personal hostility to the
accused was not a matter for plea, but, if desired to be taken advantage of, should be
offered in evidence. Dig. Opin. J. A. G., par. 1996.
Defense at trial. — In order that he may not be embarrassed in making his defense,
a See Clode, Mil. Forces of the Crown, vol. 1, p. 173; Prendergast, 244-n, in connection with the
cases cited of Sir Walter Raleigh, Lord Lucan, Captain Ac-bison, etc.
6 See VIII Opins. of Attys. Gen., 237.
cVI Opin. Att. Gen., 714.
dEx parte Wells, 18 Howard, 307; Common weal th r. Haggarty, 4 Brewst., 326; VI Opins. Attys. Gen.,
MILITARY LAWS OF THE UNITED STATES. 701
the accused party on trial before a court-martial should be subjected to no restraint
other than such' as may be necessary to enforce his presence or prevent disorderly
conduct on his part. Except, therefore, in an extreme case, as where, the accused
being charged with an aggravated and heinous offense, there is reasonable ground to
believe that he will attempt to escape or to commit acts of violence, the keeping or
placing of irons upon him while before the court will not be justified. («) Even in
such a case it will be preferable to place ana dequate guard over him. (b) Dig. Opin.
J. A. G., par. 1047.
The fact that the accused is an officer of high rank should not be regarded as con-
stituting a ground for allowing him any special right or privilege in his defense before a
court-martial. The administration of justice by a military, as by a civil court, must
be strictly impartial, or it ceases to be pure. All persons on trial by the one species
of tribunal, as by the other, are deemed to be equal before the law. " Ibid., par. 1049.
The judge-advocate should advise the accused, especially when. ignorant and unas-
sisted by counsel, of his rights in defense — particularly as" to his right, if it exists in
the case, to plead the statute of limitations, and of his right to testify in his own
behalf. A failure to do so, however, will not affect the legal validity of the proceed-
ings; though if it appear that the accused was actually ignorant of these rights, the
omission may be ground for a mitigation of sentence. Ibid., par. 1533.
It is the duty of the court to see that injustice is not done the accused by the
admission on the trial of improper testimony prejudicing his defense, or unfairly
tending to aggravate the misconduct charged. In the interests of justice, therefore,
the court may exclude such testimony, although its admission may not be objected to
on the part of the accused. On a similar ground or for the purpose of fully informing
itself of the facts, the court may, in its discretion, allow the introduction, by either
side, of material testimony after the case has been formally closed, (c) Such a pro-
ceeding, however, must be of course exceptional, and a party should not be permitted
to offer testimony at this stage unless he exhibits good reason for not having produced
it at the usual and proper time.
An accused, prior to arraignment, even if in close arrest, should be allowed to have
interviews with such counsel, military or civil, as he may have selected. So, his
counsel should be permitted to have interviews with any accessible military person
whom it may be proposed to use as a material witness, or whose knowledge of facts
may be us. liil to the accused in preparing for trial. Ibid., par. 986.
ARGUMENTS AND STATEMENTS.
Defense. — In any case tried by court-martial the accused may, if he thinks proper
(and whether or not he has taken the stand as a witness) , (d) present to the court a
statement or address, either verbal or in writing. Such statement is not evidence; (e)
as a personal defense or argument, however, it may and properly should be taken
into consideration by the court. Dig. Opin. J. A. G., par. 2352.
While the statement is not evidence, and the accused is not in general to be held
bound by the argumentative declarations contained in the sam'e, yet, if he clearly
and unequivocally admits therein/(/c-/.s material to the prosecution, such may prop-
erly be viewed by the court and reviewing officer as practically facts in the case.(/)
So, where the accused, in his statement, fully admits that certain facts existed sub-
stantially as proved, he may be regarded as waiving objection to any irregularity in
the form of the proof of the same. Ibid., par. 2353.
A large freedom of expression in his statement to the court is allowable to an
accused, especially in his comments upon the evidence. So, an accused may be per-
mitted to reflect within reasonable limits upon the apparent aninms of his accuser or
aCompare G. C. M. O. 62, Dept. of the Missouri, 1877; do. 55, id., 1879; and— as to the civil practice-
Lee r. State, 51 Miss., 566; People ».-. Harrington, 42 Cal., 175.
b Arraignment means the calling the offender to the bar of the court to answer the matter he is
charged with, and in doing which the law directs (and, indeed, common compassion points out to us)
that every person ought to be used with all the humanity and gentleness which is consistent with the
nature of the thing, and under no terror or uneasiness than what proceeds from a sense of his_guilt
and the misfortune of his present circumstances, and, therefore, ought not to be brought to the bar in
a contumelious manner, though charged with the highest crimes, as with his hands tied together, or
any mark of ignominy and reproach, nor even with fetters on his feet, unless there be some danger
of an escape or rescue. Adye, 129, 130.
c Com pare Eberhardt v. State, 47 Ga., 598; and see the Trial, by court-martial, of B. G. Harris (Ex. Doc.
No. 14, Ho. of Reps., 39th Cong., 1st sess., p. 25), where, on the day on which the accused was to present
his final argument to the coart, and which was two days after the formal closing of the case, the defense
was allowed to introduce new testimony on the merits.
(ZSee G. C. M. O. 3, Dept. of the Missouri, 1880.
c That a sworn statement can not be made to serve as the testimony of the accused as a witness under
the act of March 16, 1878. See Dig. Opin. J. A. G., 749, par. 2.
. /Similarly as a fact clearly admitted or assumed in the course of a trial may be considered as much
in the case as if it had been expressly proved. See Paige v. Fazackerly, 36 Barb., 392.
702
MILITARY LAWS OF THE UNITED STATES
WITNESSES. l
Par.
1809. Oath.
1810. Process of attachment.
181 1 . Refusal of civilian witness to testify.
1812. Fees; civilian in Government em-
ploy.
°f
Par.
1813. The same; not in Government em-
ploy.
1814. Return journeys.
wit" 1809- A1] Per80ns who give evidence before a court-
92 Art. of war. martial shall be examined on oath, or affirmation, in the
following form: " You swear (or affirm) that the evidence
you shall give, in the case now in, hear ing, shall l)e the trt/f/t,
the whole truth, and nothing but the truth. So helj> you
God,"
prosecutor, though a superior officer and of high rank. But an attack upon such a
superior, of a personal character and not apposite to the facts of the case, is not legiti-
mate; nor is language of marked disrespect employed toward the court. Matter of
this description may indeed be required by the court to be omitted by the accused
as a condition to his continuing his address or filing it with the record. Ibid., par.
2354.
Judge-advocate. — It is settled in our military procedure that the closing statement
or argument, where addresses are presented on both sides, shall be made on the part
of the prosecution. The judge-advocate, however, may, and, in practice, not rarely
does, waive the right of offering any argument or remarks in reply to the address of
the accused. On the other hand, the accused may waive the right, and the judge-
'advocate alone present a "statement. "(a) Ibid., par. 2355.
In the trial of a commissioned officer in 1872 the judge-advocate proposed to pre-
sent an argument in behalf of the prosecution, but his request was denied by the
court on the ground that no statement or address had been submitted by the accused.
In reviewing the case the Secretary of War disapproved the action of the court in
this respect on the ground that "the judge-advocate has an undoubted right at the c!< >>e
of tho trial to address the court for the purpose of commenting on the whole evidence
and the law applicable to it; and this right is in no degree abridged by a waiver of
the accused of his like privilege." G/C. M. 0. No. Ill', War Dept,, 1872,
In the case of a commissioned officer tried in 1872 and sentenced to dismissal, the
court refused to permit certain witnesses to be summoned at the request of the
accused. In disapproving the action of the court in this respect the court was
reminded by the reviewing authority that "the least denial to an accused person of
any proper facility or opportunity for defense can serve only to defeat the ends of
justice and may often lend impunity to guilt." G. C. M. O. No. 21, War Dept., 1872.
In the case published in G. C. M. O/No. 24, War Dept., 1872, the exclusion of a single
question caused the original reviewing, authority (the department commander) to
disapprove the finding upon an important specification. "Courts-martial had much
better err on the side of liberality toward a prisoner than, by endeavoring to solve
nice and technical refinements of "the laws of evidence, assume the risk of injuriously
denying him a proper latitude for defense." G. C. M. O. No. 32, War Dept., 1872;
G. C. M. 0. No. 7, War Depf,, 1873; G. C. M. O. No. 25, ibid., 1875.
1 Military witnesses. — The attendance of military witnesses is obtained by the issue
of orders or instructions by the post, department, or other proper military com-
mander, upon the request of the judge-advocate made in pursuance of paragraphs
1023 and 1024, Army Regulations of 1901.
An officer or enlisted man who receives a summons to attend as a witness before
any military court, board, civil court, or other tribunal competent to issue subpoenas,
which is sitting beyond the limits of the department where he is serving, will, before
starting to obey the summons, forward it through the proper- channel to his depart-
a The judge-advocate in our practice is entitled to the closing argument or address to the court, and
he may present an address although the accused waives his right to present any; the function of the
judge-advocate, at this stage of the proceedings, riot being confined merely to a replying to the accused.
The judge-advocate in his address is not authorized to read to the court evidence or written state-
ments not introduced upon the trial and which the accused has had no opportunity to controvert or
comment upon. Dig. Opiii. J. A. G., par. 1542.
MILITARY LAWS OF THE UNITED STATES. 703
ment commander, that necessary orders, or authority to obey a civil process, may be
fiven. In urgent cases, or when the public interest would be liable to suffer by
elay, a post commander may authorize immediate departure, reporting his action
and reasons therefor to the department commander. Par. 1025, Army Regulations
of 1901.
Civilian witnesses. — The ordinary process for obtaining the attendance of a civilian
witness is the writ of subpoena. ' This is a judicial writ commanding the witness to
appear in court, on a day therein mentioned, to testify in the particular case named
in the writ. In the practice of the Federal courts and that of courts-martial, the
command of the writ runs in the name of the President (see the form of sub-
poena on page 128, Manual for Courts-Martial) , and the writ is addressed, not to the
officer who serves it, but to the witness himself. For this reason the writ may be
served by any person of competent age and discretion. As there is no appropriation,
however, which is available for the payment of officers of court, or for the compen-
sation of civilians for the service of subpoenas, they should be served by military
persons.
A summons may legally be served either by a military or a civil person, (a) but, for
the reason above stated, will in general preferably be served by an officer or non-
commissioned officer of the Army. A judge-advocate or a commanding or other
officer to whom a summons is sent for service will not be authorized, by employing
for the purpose a U. 8. marshal or deputy marshal, or other civil official, to commit
the United States to the payment of fees to such official. The action*, however, of a
judge-advocate in employing a deputy marshal to serve a summons, where appar-
ently the service could not otherwise be so effectually or economically made, has in
a few cases been so far ratified by the Secretary of War as to allow, out of the appro-
priation for army contingencies, the payment of a small and reasonable account of
charges rendered by such official. Dig. Opin. J. A. G., par. 2470.
Service, to be legal or sufficient, must be personal; to constitute such seryice the
original writ of subpoena must be delivered or read to the witness by the person
deputed to serve it. Return of service is made by indorsing the fact of service on
the back of the duplicate subpoena (for form of such affidavit of service, see p. 129,
Manual for Courts-Martial ) . Service, to be sufficient as the basis for a writ of attach-
ment, must be personal and must be made in the manner above described; to war-
rant the mere payment of fees, however, service by telegraph or in any other form
will ordinarily suffice. See MANUAL FOR COURTS-MARTIAL.
Except where their testimony will be merely cumulative, and will clearly add
nothing whatever to the strength of the defense, the accused is in general entitled
to have any and all material witnesses summoned to testify in his behalf. (6) A prompt
obedience to a summons is incumbent upon all witnesses, nor is a commanding or
superior officer in general authorized to place any obstacles in the way of the prompt
attendance, as a witness, of an inferior duly summoned or ordered to attend as such.
Where the judge-advocate has declined to summon a witness for the accused, for
the reason that he is not "satisfied" (in the words of par. 922 of the Army Regula-
tions) that his testimony is "material and necessary to the ends of justice," the
court may, in its discretion, direct him to be summoned. The court, however, will
not in general properly sanction the summoning of a witness where it is not prob-
able that his attendance can be secured within a reasonable time and his deposition
legally be taken pursuant to the 91st Article of War. Dig. Opin. J. A. G., par. 2467.
In military law an accused party can not be deemed to be entitled to have a wit-
ness summoned from a distance whose military or administrative duties are of such
a character that they can not be left without serious prejudice to the public interests.
Article VI of the amendments to the Constitution, declaring that the accused shall
be entitled "to be confronted with the witnesses against him," applies only to cases
before the United States courts, (c) Thus, where the offense charged is not capital,
and a deposition may therefore legally be taken under the 91st Article of War, the
Secretary of War will not in general "authorize the personal attendance at the place
of trial of a witness whose office or duty makes it necessary or most important that
he should remain elsewhere. Ibid., par. 2468.
The subpoena duces tecum. — In addition to the ordinary writ of subpoena (ad testi-
ficandum) for obtaining the attendance of a civilian witness, the judge-advocate is
empowered, in a proper case, to issue writs of subpoena daces tecum. It is the pur-
pose of this writ to secure the production of documents or writings which are in
possession of a witness and are deemed, by either party, to be material to his case.
This form of subpoena is issued in the same manner and under the same conditions
a See General Orders, No. 93, War Department, 1868.
. 5See Dig. Opin. J. A. G., par, 2313, note 1.
cSee G. C. M. O., 21 and 24, War Department, 1872. Ibid., No. 128, 1876.
704 MILITARY LAWS OF THE UNITED STATES.
pened S5S3: 1810' Every judge-advocate of a court-martial shall have
?9?i? 25? V^ff,' p! Power to issue the like process to compel witnesses to
l^us.2^'. is™! aPPear an(i testify which courts of criminal jurisdiction
within the State, Territory, or District where such mili-
244.
Sec. 1202. K.8,
tary courts shall he ordered to sit may lawfully issue.
as the subpoena ad testificandum, and contains a clause of requisition in which the
writing or document which is desired to be produced shall be particularly described.
The operation of this writ does not extend to the production of any objects or things
save documents or written instruments.
A subpoena duces tecum can only be used to compel the production of documentary
evidence, books, papers, accounts, and the like. In re Shephard, 3 Fed. Rej>.. 12;
3 Starkie on Evidence, 172; Arny v. Long, 9 East, 473.
Telegraphic messages in the hands of telegraph companies are not privileged c« >m-
munications, so far as the companies are concerned, and their production will be
compelled by subpoena duces tecum in aid of an investigation by a grand jury of
supposed criminal acts of the senders and receivers of the messages, with which
such companies and their officers are in no way connected. In re Storrow, :> Fed.
Rep., 564; Southern Law Review, vol. v (n. s.), 473; ex parte Brown, 72 .Mo., s;;;
U. S. v. Babcock, 3 Dill., 566; U. S. v. Hunter, 15 Fed. Rep., 712; State r. Litch-
field, 58 Maine, 267.
In view of the embarrassment which must generally attend the proof, before a
court-martial, of the sending or receipt of telegraphic messages by means of a resort,
by 'subpoena duces tecum, to the originals in possession of the telegraph company, («)
advised that the written or printed copy furnished by the company and received by
the person to whom it is addressed should in general be admitted in evidence 1 • y a
court-martial in the absence of circumstances casting a reasonable doubt upon' its
genuineness or correctness. But where it is necessary to prove that a telegram
which was not received, or the receipt of which is denied and not proven, was
actually duly sent, the operator or proper official of the company, or other person
cognizant of the fact of sending, should be summoned as a witness. I >ig. Opin. J. A . < i. ,
par. 1295.
A court-martial (by subpoena duces tecum, through the judge-advocate) may sum-
mon a telegraph operator to appear before it, bringing with him a certain telegraphic
dispatch. But it is beyond the power of such court to require such witness against
his will to surrender the dispatch, or a copy, to be used in evidence. Ibid., par.
1296.
'The authority to issue process to compel civilian witnesses to appear and testify is
vested, by section 1202, Revised Statutes, in "every judge-advocate of a court-mar-
tial." The present statute, however (unlike the original form), does not extend
the authority to recorders of courts of inquiry. Further, the authority, being voted
exclusively and independently in the judge-advocate, can not be exercised by the
court. The attachment is thus not a writ or process of the court, but simply a com-
pulsory instrumentality placed at the disposition of the judge-advocate as the prose-
cuting official representing the United States. Dig. Opin. J. A. G., par. 247s.
Section 1202, Revised Statutes, authorizes only judge-advocates of courts-martial to
issue process to compel the attendance of witnesses. The court itself, general or
inferior, has no such power. Ibid., par. 1551.
To authorize a resort to an attachment, there must have been a formal summons,
duly issued and served upon the witness, and not complied with. Ibid. . 2479.
A judge-advocate can not properly direct an attachment to a United States marshal
or deputy marshal or other civil official. Some military officer or person should he
designated by him, or detailed for the purpose by superior authority. In executing
the attachment, the needful force may be employed, but no more. "ibid., par. 24S1.
The judge-advocate is authorized only to initiate the process of attachment. The
statute does not specify by whom it shall be executed, and the judge-advocate is not
authorized to command any officer or person to serve it, nor has the court any such
power. Ibid.-, par. 1551.
Judge-advocates of military posts, in issuing process under section 1202 of the
Revised Statutes, to compel the attendance of witnesses, will formally direct the
n The subject of the extent of the authority of the courts to compel telegraph companies to pro-
duce original private telegrams for use in evidence is most fully treated in an essay by Henry Hitch-
cock, esq., on the "Inviolability of telegrams," published in the Southern Law Review for October,
1879.
MILITARY LAWS OF THE UNITED STATES. 705
1811. Every person not belonging to the Army of the peaf0UrStestifyap*
United States who, being duly subpoenaed to appear as a 31Mpar9|; 1901> v*
witness before a general court-martial of the Army, will-
fully neglects or refuses to appear, or refuses to qualify
as a witness or to testify or produce documentary evidence
which such person may have been legally subpoenaed to
produce, shall be deemed guilty of a misdemeanor, for
which such person shall be punished on information in the
district court of the United States; and it shall be the
duty of the United States district attorney, on the certi-
fication of the facts to him by the general court-martial,
to file an information against and prosecute the person so
offending, and the punishment of such person, on convic-
tion, shall be a fine of not more than five hundred dollars ?
or imprisonment not to exceed six months, or both, at the ,
discretion of the court: Provided, That this shall not apply I
to persons residing beyond the State, Territory, or Dis-
trict in which such general court-martial is held, and that
the fees of such witness, and his mileage at the rates pro-
vided for witnesses in the United States district court for
said State, Territory, or District shall be duly paid or ten-
dered said witness, such amounts to be paid by the Pay
Department of the Army out of the appropriation for
compensation of witnesses: Provided, That no witness
shall be compelled to incriminate himself or to answer any
question which may tend to incriminate or degrade him.1
Act of March 0, 1901 (31 Stat. Z., 950).
same to an officer designated by the department commander to execute it. The
nearest military commander will furnish the necessary military force for the execu
tion of the process, if force be required. A subpoana may be served by any person.
Par. 1026. Army Regulations of 1901. See also MANUAL FOR COURTS-MARTIAL, pp.
31-34, 130.
A judge-advocate, having attached a civilian witness and had him brought to the
place of the court, detained him one hour in the guardhouse before bringing him
before the court. For this he was indicted for false imprisonment in a United States
district court in Texas. Held, that his action was warranted under section 1202,
Revised Statutes, and advised that the Attorney-General be requested to cause the
prosecution to be discontinued. Dig. Opin. J. A. G., par. ]552.
The/orra of the process of attachment should, under the statute conferring author-
ity to issue it, be ' ' like ' ' that employed in the procedure of the criminal courts, or a
criminal court, of the State, Territory, or District (of Columbia) in which the court-
martial is ordered to sit. Where there is no special form of process for the attach-
ment of witnesses in criminal cases in use in the State, the statute will be sufficiently
complied with if the general form of attachment of a witness for contempt for not
obeying a summons be substantially followed. For form of attachment, see MANUAL
FOR COURTS-MARTIAL, p. 161.
1 For procedure in the case of a civilian witness under the foregoing enactment see
paragraph 1067, Army Regulations of 1901.
22924—08 45
706 MILITAEY LAWS OF THE UNITED STATES.
FEES OF WITNESSES.1
t Civilians in the employ of the Government when
A R traveling upon summons as witnesses before military courts
1901. are entitled to transportation in kind from their place of
residence to the place where the court is in session and
return. If no transportation be furnished they are enti-
tled to reimbursement of the cost of travel actually per-
formed by the shortest usually traveled r<3ute, including
transfers to and from railway stations, at rates not exceed-
ing fifty cents for each transfer, and the cost of a double
berth in a sleeping car or steamer when an extra charge is
made therefor. They are also entitled to reimbursement
of the actual cost of meals and rooms at a rate not exceed-
ing three dollars per day for each day actually and una-
voidably consumed in travel or in attendance upon the
court under the order or summons. No allowance will be
made to them when attendance upon court does not require
them to leave their stations. Par. 1066, A. fi. 1901.
in€iGovae^iment 1813- ^ civilian not in Government employ duly sum-
eipar?i667 A B mone(l t° appear as a witness before a military court will
1901' receive one dollar and fifty cents for each day actually and
unavoidably consumed in travel or in attendance upon the
court under the summons, and five cents a mile for going
from his place of residence to the place of trial or hearing
and five cents a mile for returning. Civilian witnesses
will be paid by the Pay Department.2 Par. 1067, ibid.
1 In view of the provision of section 1248, Revised Statutes, investing retiring boards
with such powers of courts-martial as may be necessary to enable them to inquire
into and determine the facts touching the disability of officers whose cases are referred
to them, held that a retiring board might legally cause material witnesses to be sum-
moned to attend its sessions, and that witnesses so summoned would probably be en-
titled to the fees of witnesses before courts-martial. Dig. Opin. J. A. G., 756, par. 25.
Held that parties who appeared and testified before, and at the instance of, an
officer charged with the preliminary investigation of a case, but were not required to
attend at a subsequent trial, were not legally entitled to witness fees. Ibid. , par. 2477.
The compensation allowed by the Secretary of War for witnesses summoned as
experts in handwriting before a court-martial (see Smith v. U. S., 24 Ct. Cls.,
209) , held payable out of the annual appropriation ' ' for compensation of witnesses
attending upon courts-martial and courts of inquiry." Ibid., par. 2483.
Held that duly attending by a civilian witness before a duly authorized official to
give a deposition, to be used in evidence on a military trial, was to be regarded as
practically equivalent to attending a court-martial, and that the deponent was
entitled to be paid the usual allowances (i. e. , the same as those of witnesses appear-
ing before the court), out of the regular appropriation for the "compensation of
witnesses attending before courts-martial," etc. Ibid., par. 2484.
2 Neither the appropriation ' ' for the compensation of witnesses ' ' attending military
courts, nor the appropriation for the contingent expenses of the Army, is applica-
ble to the payment of allowances, as witnesses before civil courts, of officers or
soldiers of the Army, or of civil employees of the military establishment. For such
allowances they must look to the laws and appropriations fixing and authorizing
the payment of witness fees in these courts. .Dig. Opin. J. A. G., par. 2486, See
paragraph 1070, Army Regulations of 1901,
MILITARY LAWS OF THE UNITED STATES.
707
1814. The charges for return journeys of witnesses willne^turn J°ur-
be made upon the basis of the actual charges allowed for ^ar.ioes^.R.
travel to the court, and the entire account thus completed
wi1! be paid upon discharge from attendance, without
waiting for completion of return travel.1 Par. 1068 ibid.
EVIDENCE.
Par.
1814. To be given under oath.
1815. No exclusion for color, interest, etc.
1816. Administration of oaths.
1817. Testimony of accused persons.
1818. Documentary evidence; copies of
records in Executive Depart-
ments.
1819. The same; records in Treasury De-
partment.
Par.
1820. The same; transcripts from books.
1821. "The same.
1822. Returns in return's office.
1823. Journals of Congress.
1824. Consular records.
1825. Legislative acts; judicial proceed-
ings.
1826. Kecords of State officers, etc.
1827. Laws of the United States.
1814. All persons who give evidence before a court- Evidence to be
firi v 6ii under
martial shall be examined on oath, or affirmation, in the oath.
following form: "You swear (or affirm) that the evidence
you shall give, in the case now in hearing, shall he the
truth, the whole truth, and nothing hut the truth. So help
you God. " { Ninety-second Article of War.
xThe items of expenditure authorized in paragraphs 1066 and 1067 (Army Regula-
tions) will be set forth in detail and made a part of each voucher for reimbursement.
No other items will be allowed. The correctness of the items will be attested by the
affidavit of the witness, to be made when practicable before the judge-advocate, and
the voucher will be accompanied by the original summons or a duly certified copy
thereof. The certificate of the judge-advocate will be evidence of the fact and period
of attendance, and will be made upon the voucher. Par. 1069, A. R. 1901.
2 Oath. — This article prescribes a single specific form of oath to be taken by all wit-
nesses. The Constitution, however (article 1 of amendments), has provided that
Congress shall make no law prohibiting the free exercise of religion. Where, there-
fore, the prescribed form is not in accordance with the religious tenets of a witness,
he should be permitted to be sworn according, to the ceremonies of his own faith or
as he may deem binding on his conscience.
The article does not prescribe by whom the path shall be administered. By the
custom of the service it is administered by the judge-advocate. (And see, now, the
provision of the act of July 27, 1892, sec. 4. ) When the judge-advocate himself takes
the witness stand, he is properly sworn by the president of the court. Dig. Opin.
J. A. G., par. 274.
A witness who has once been sworn and has testified is not required to be resworn
on being subsequently recalled to the stand by either party. The reswearing, how-
ever, of such a witness will not affect the legal validity of the proceedings or sen-
tence.
A witness who has given his testimony should in general be allowed to modify the
same where he desires to do so in a material particular. But where the court has
refused to permit a witness to correct his statement as recorded, such refusal need
not induce a disapproval of the proceedings unless it appear that the rights of the
accused have thus been prejudiced. Ibid., par. 2472.
Witnesses should not in general be admitted to the court room, but should be kept
as far as practicable apart, until required to appear and give their testimony. But
that a witness or witnesses may have been permitted to remain in the court room
and hear the testimony of witnesses previously called can not affect the legality of
the proceedings.
A witness can have no authority to discharge or relieve himself from attendance
on the ground that the testimony desired of him is immaterial or for any other
708 MILITARY LAWS OF THE UNITED STATES.
reason. In the civil practice such an act would be a grave contempt of court. It is
for the court to judge as to the materiality or pertinency of the evidence of witnesses,
and unless a witness has been determined by the court to be incompetent or his tes-
timony to be inadmissible, he should remain and stand his examination till informed
by the court or judge-advocate that his attendance is no longer required in the case.
Ibid., par. 2473. See also, in this connection, MANUAL FOR COURTS-MARTIAL.
COMPETENCY OF WITNESSES.
The rules governing the competency of witnesses before the criminal courts of the
United States and the States are, where apposite, generally (though not always nec-
essarily) followed in the practice of courts-martial. Ibid. , par. 2460. See also MANUAL
FOR COURTS-MARTIAL, p. 40.
The law by which, in the opinion of this court, the admissibility of testimony in
criminal cases must be determined is the law of the State as it was when the courts
of the United States were established by the judiciary act of 1789. The courts of the
United States have uniformly acted upon this construction of these acts of Congress,
and it has thus been sanctioned by a practice of sixty years. U. S. v. Reid, 12 How.,
361, 363, 366; Logan v. U. S., 144 U. S., 263, 301.
A wife is not a competent witness for or against a person accused of crime, on his
trial. Comment on her absence by the district attorney held to be reversible error.
Graves v. U. S., 150 U. S., 118; U. S. v. Jones, 32 Fed. Rep., 569.
It has been uniformly held that the wife of a person on trial before a court-martial
could not properly be admitted as a witness for or against him; (a) and the statute
authorizing accused parties to testify does not affect this rule. The wife, however,
of an officer or soldier may be admitted to testify in his case before a court of inquiry,
the proceeding before such a body not being a trial, but an investigation merely.
Where a court-martial refused to admit in evidence (as being incompetent) the
testimony of the wife of the prosecuting witness, held that its action was entirely
erroneous, no legal objection existing to the competency of such a person. Dig.
Opin. J. A. G., par. 2462. See also MANUAL FOR COURTS-MARTIAL.
A wife is not a competent witness to prove a charge of failing to support her, for
which her husband is on trial. Ibid., par. 1305.
It is no objection to the competency of a witness that he is the officer upon whom
will devolve the duty of reviewing authority when the proceedings are terminated.
Ibid., par. 2464.
An insane person is no more competent as a witness before a court-martial than at
common law. Testimony admitted of a person shown to be insane should be stricken
out on motion made.
A person who is insane at the time is incompetent as a witness. An objection,
however, to a witness on account of alleged insanity will not properly be allowed,
unless sustained by clear proof, a man being always presumed to be sane till prover
to be otherwise. Ibid., par. 2466.
A boy of five is not, as a matter of law, absolutely disqualified as a witness; and in
this case the disclosures on the voir dire were sufficient to authorize his admission to
testify. Wheelers. U. S., 159 U. S., 523; Brasier's case, 1 Leach Crim. Law, 199; 1
Greenleaf, sec. 367; 1 Wharton, Evidence, sees. 398-400; 1 Best, sees. 155, 156; State
v. Juneau, 88 Wisconsin, 180; Ridenhour v. Kansas City Cable Co., 102 Missouri,
270; McGuff v. State, «8 Alabama, 147; State v. Levy, 230 Minnesota, 104; Common-
wealth v. Mullins, 2 Allen (Mass.), 295; Peterson v. State, 4Y Georgia, 524; Stater.
Edwards, 79 North Carolina, 48; State v. Jackson, 9 Oregon, 457; Black well v. State,
11 Indiana, 196.
It is no objection to the competency of a witness that his name is not on the list of
witnesses appended to the charges when served. The prosecution is not obliged to
furnish any list of witnesses, nor, where one is furnished, to confine itself to the
witnesses thus specified. The fact that material testimony is given by an unex-
pected witness may indeed constitute ground for an application by the accused
(under article 93) for further time for the preparation of his defense. Dig. Opin. J.
A. G., par. 2465.
The fact that a party is a public enemy of the United States, or has engaged in
giving aid to the enemy, does not affect the competency of his testimony as a wit-
ness before a court-martial. Where testifying, however, in time of war, either in
favor of a person in the enemy's service or an ally of or sympathizer with the enemy,
or against a Federal officer or soldier, his statements (like those of an accomplice)
ciNor will the testimony of the wife of an accused be admissible in favor of or against a party
jointly charged with him, where her testimony 'will be material to the merits of the question of the
guilt or innocence of her husband. See Territory v. Paul, 2 Montana, 314.
MILITARY LAWS OF THE UNITED STATES. 709
are ordinarily to be received with caution unless corroborated. The fact that a party
is under a political disability is not one which goes to his competency if offered as a
witness. So the fact that a witness has been convicted of desertion may impair his
credibility, but can not affect his competency. Ibid., par. 1297.
Desertion is not a felony and does not render a witness incompetent at common
law or before a court-martial. Nor does the loss of citizenship upon conviction of
desertion, under sections 1996 and 1998, Revised Statutes, have such effect, the com-
petency of a witness not depending upon his citizenship. A pardon of a person
thus convicted would not, therefore, add to his competency. But where it was pro-
posed to introduce such a person as a material witness for the prosecution in an
important case, advised that it would be desirable to remit the unexecuted portion
of his sentence, if any. Ibid., par. 1298.
Where a conviction (of rape) rested mainly 011 the testimony of the victim, a child
of 8 years of age, held that the competency of the witness was doubtful, and that the
trial should have been suspended and the child instructed, (a) Where a court-
martial received the testimony of a female child of 3£ years without swearing her,
held that it had wholly exceeded its authority, unsworn testimony being entirely
incompetent in any case. Ibid., par. 1306.
The president or any member of a court-martial, as also the judge-advocate, may
legally give testimony before the court. That the court, at the time of a member's
testifying, is composed of but five members will not affect the validity of the pro-
ceedings, since in so testifying he does not cease to be a member. It is in general,
however, most undesirable that the judge-advocate, and still more that a member,
should appear in the capacity of a witness, except perhaps where the evidence to be
given relates simply to the good character or record of the accused. (6 ) Ibid. , par. 2463.
MISCELLANEOUS PROVISIONS.
Courts-martial, in the absence of any specific statutory rules, are in general gov-
erned by the rules of evidence of the common law.
Courts-martial should in genera! follow, so far as opposite to military cases, the
rules of evidence observed by the civil courts, and especially the courts of the United
States, in criminal cases, (c) They are not bound, however, by any statute in this
particular, and it is thus open to them, in the interests of justice, to apply these
rules with more indulgence than the civil courts — to allow, for example, more latitude
in the introduction of testimony and in the examination and cross-examination of
witnesses than is commonly permitted by the latter tribunals. In such particulars,
as persons on trial by courts-martial are ordinarily not versed in legal science or
practice, a liberal course should in general be pursued, and an overtechnicality be
avoided, (d) Dig. Opin. J. A. G., par. 1285.
The law by which the admissibility of testimony in criminal cases in the courts of
the United States must bo determined is the law of the State, as it was when these
courts were established by the judiciary act of 1789. They have uniformly acted
upon this construction of the judiciary act of 1789 and the crimes act of 1790, and it
has thus been sanctioned by a practice of sixty years. U. S. v. Reid, 12 How. , 361, 363,
366; Logan v. U. S., 144 U. S., 263, 300; xvii, Opin. Att. Gen., 310.
How applied. — The rules of evidence should be applied by military courts irrespec-
tive of the rank of the person to be affected. Th us a witness for the prosecution,
whatever be his rank or office, may always be asked, on cross-examination, whether
he has not expressed animosity toward the accused, as well as whether he has not on
a previous occasion made a statement contradictory to or materially different from
that embraced in his testimony. Such questions are admissible by the established
al Greenleaf on Evidence, sec. 367.
b In the British service until the year 1805 oaths were only administers 1 to witnesses before gen-
eral courts-martial. In that year, but against the advice of many general officers (including the
Duke of Wellington), the provisions of the article were extended in this respect to the minor cqurts.
Clode, Mil. Law, 126.
cSee 3 Greenl. Ev., sec. 476; Lebanon v. Heath, 47 N. Hamp., 359: People r. Van Allen, 55 N. York,
39; II Opin. Atty. Gen., 343; Grant v. Gould, 2 H. Black., 87; 1 McArthur, 47; Halcourt, 76; De Hart,
334; O'Brien, 169; G. O. 51, Middle Department, 1865; G. C. M. O. 60, Department of Texas, 1879; G. C.
M. O. 3, 52, Department of the East, 1880. While the Federal courts sitting within a State must
enforce the provisions of a local statute prescribing rules of evidence, unless it is in conflict with
some law of the United States regulating the same subject, yet the decisions of the State courts con-
struing common-law rules of evidence are not obligatory on the Federal courts, though they will be
followed when the question at issue is balanced with doubt. Union Pacific R. R. Co. v. Yates, 79 Fed.
Rep., 584; McNeill v. Hoi brook, 12 Peters, 84, 88, 89; Wright v. Bales, 2 Black, 535; Porter v. Bank, 102
U. S., 163, 165; Burgess v. Seligman, 107, U. S., 20; Railroad Co. v. Baugh, 149, U. S., 368; Ryan v.
Staples, 76 Fed. Rep., 721, 727; Railroad Co. v. Hogan, 3 Fed. Rep., 102.
dCompare the views expressed in G. C. M. O. 32, War Department, 1872; G. C. M. O. 23, Department
of Texas, 1873; G. C. M. O. 60, Department of California, 1873.
no
- - .-.-- ; - ;.r-
veu aitaoeewnere KM otacrenaajun^ upoa
: :. T 7-7 . r • * — :
m. Wheicaack
by court-maitai
the fact tint he
the fact daft he ad
r U. gL, 164 U. & 3KI; Gam.
91 Fain- SL, 16 Buuam c.
•» proper to be ™ca by maw
tfaerefa of afl the
Ckaeotf Cotood
387. In
•Mrinl to tatiff ra "«n«t« » irg»d fi
•v i :_-,: v--''----'- : i -^^- :-:^
,7 -r;^:^" 'l'^ -;^
•ME* VH^B^MW <^« •tvt ««••«« di^teK 2*i^^ *1»^ <^BM^ ^«*MM mfimB^HJl^B-
HB ^•K^MQTw aK IO C^aOBm VBHE& ••• •••> :fiBKX 3HTDHH HOIK BTIB9HBK
712 MILITAEY LAWS OF THE UNITED STATES.
THE RULES OF EVIDENCE.
Jd 'onlc8 1815- In the courts of the United States no witness shall
interest! c°p?ovi- ^e excluded in any action on account of color, or in any
de/uiyt2', 1864, s. c^v^ action because he is a party to or interested in the
3> MM.' flees, v.issue tried: Provided, That in actions by or against execu-
13j£iy!3i6,i862)8,tors5 administrators, or guardians, in which judgment may
^SeS'JssTit.s. ke rendered for or against them, neither party shall be
allowed to testify against the other, as to any transaction
with, or statement by, the testator, intestate, or ward,
unless called to testify thereto by the opposite party, or
required to testify thereto by the court. In all other
respects the laws of the State in which the court is held
shall be the rules of decision as to the competency of wit-
nesses in the courts of the United States in trials at com-
mon law and in equity and admiralty.1
tio^iaths.ra~ 1816- Judge-advocates of departments and of courts-
4, vU27 p!^1?!92' s' martial, and the trial officers of summary courts, are hereby
authorized to administer oaths for the purposes of the
administration of military justice, and for other purposes
of military administration. Sec. 4, act of July 27, 1892
(27 Stat. Z., 278).
TESTIMONY OF ACCUSED PERSONS.
sonsmlydtest?fy" 1817< *n tne tr^ °^ a^ indictments, informations, com-
2oMpar30 6> 18?8' v' .plains, and other proceedings against persons charged
with the commission of crimes, offenses, and misdemeanors,
is, indeed, specially empowered to exercise this function, under certain circumstances,
by statute, as by the second, eighty-fourth, and eighty-fifth articles of war; and,
further, by section 183, Revised Statutes, in a case where; being an officer of the War
Department, he is detailed to investigate frauds, etc. Dig. Opin. J. A. G:, par. 1799.
The act of July 27, 1892 (27 Stat. L,, 278), in authorizing certain military officers
to administer certain oaths, does not, of course, affect the power of administering
such oaths of other officials who may have been authorized to administer them
before the passage of the act. Such officials may still administer the same, and when
doing so should be paid their fees as notaries, commissioners, etc., as before. But,
to avoid expense, it is desirable to resort to the officers empowered by the statute,
where practicable. Ibid., par. 1801.
1U. S. v. Murphy, 16 Pet., 203; Smyth v. Strader, 4 How., 420; U. S. v. Reed, 12
How., 361; Wrights. Bales, 2 Bl., 535; Green v. U. S., 9 Wall., 655; Lucas v. Brooks,
18 Wall., 436; Cornett v. Williams, 20 Wall., 226; Packet Company v. Clough, 20
Wall., 528; Texas v. Chiles, 21 Wall., 488; Railroad Company • v. Pollard, 22 Wall.,
341; Johnson v. Owens, 2 Dill., 475; Eslava v. Mazange's Administrator, 1 Woods,
623. Act of June 22, 1874, sec. 8 (18 Stat. L., 180).
No witness is to be discredited merely because of his race or color; and, where
counsel have asserted' that comparatively little credit is to be attached to the evidence
of ignorant or semibarbarous Indian witnesses, there is no error in the court's saying
that both white men and Indians lie, and that the evidence of both is entitled to the
same credit, and such credibility is to be determined by the same rules of law, when
this is coupled with a correct statement of the jury's right to consider the intelli-
gence, appearance, apparent candor, opportunities of knowledge, etc., of each wit-
ness. Shelp v. U. S., 81 Fed. Rep., 94.
MILITARY LAWS OF THE UtflTED STATES. 718
in the United States courts, Territorial courts, and courts-
martial, and courts of inquiry, in any State or Territory,
including the District of Columbia, the person so charged
shall, at his own request but not otherwise, be a competent
witness. And his failure to make such request shall not
create any presumption against him. 1 Act of March 16,
1878(20 Stat. Z.,30).
1 The act of March 16, 1878 (20 Stat. L., 30) , having provided that a person charged
with the commission of a crime may, at his own request, be a competent witness in
the trial, but that "his failure to make such request shall not create any presumption
against him," all comment upon such failure must be excluded from the jury. Wil-
son v. U. S., 149 TJ. S., 60. Such failure to testify is not to create a presumption of
guilt. U. S. v. Pendergrast, 32 Fed. Rep., 198. When such an accused person elects
to testify in his own behalf his testimony may be impeached. U. S. t?. Brown, 40
Fed. Kep., 437.
An accused person can not testify in his own behalf if incompetent to testify as
a witness for any cause. U. S. v. Hollis, 43 Fed. Rep., 248.
Pardon restores competency to testify. Logan v. U. S., 144 U. S., 263; Boyd v. U. S.,
142 U. S., 450.
If he waives his privilege as to one act he does so fully in relation to that act;
but he does not thereby waiye his privilege of refusing to reveal other acts wholly
unconnected with the act of which he has spoken, even though they be material to
the issue. Low v. Mitchell, 18 Me., 372; Tillson v. Bowley, 8 Greenl., 163.
Where an accused party waives his constitutional privilege of silence and takes the
stand in his own behalf and makes his own statement, the prosecution has a right to
cross-examine him upon such statement with the same latitude as would be exercised
in the case of an ordinary witness as to the circumstances connecting him with the
alleged crime. Fitzpatrick v. U. S., 178 U. S., 304.
Where a witness has voluntarily answered as to material criminating facts, it is
held with uniformity that he can not then stop short and refuse further explanation,
but must disclose fully what he has attempted to relate. This view is adopted by
the text-writers, and is very well explained in several of the authorities, wrhere the
principle is laid down and enforced. 1 Starkie Evid. (9th Am. ed.); Roscoe's Grim.
Ev., 174; 1 Greenl., sec. 451; 2 Phill. Ev., 935; 2 Russ. Cr., 931; Coburn v. Odell, 10
Foster, 540; State v. K., 4 N. H., 562; State v. Foster, 3 Foster, 348; Foster v. Pierce,
11 Gush., 437; Brown v. Brown, 5 Mass., 320; Amherst v. Hollis, 9 N. H., 107; Low
v. Mitchell, 18 Me., 372; Chamberlain v. Willson, 12 Vt., 491; People v. Lohmann, 2
Barb. S. C., 216; Norfolk v. Gaylord, 28 Conn., 309.
The testimony of an accused party is competent only when presented as author-
ized by the act of March 16, 1878, viz, when the party himself requests to be admitted
to testify. But such testimony is not excepted from the ordinary rules governing
the admissibility of evidence, nor from the application of the usual tests of cross-
examination, rebuttal, etc. (Big. Opin. J. A. G., par. 1300.) See, also, MANUAL FOR
COURTS-MARTIAL.
It was heretofore an established rule that accused parties could not legally testify
as witnesses before military courts, (a) But now, by the act of March 16, 1878, it is
expressly provided that at trials, not only before the courts of the United States, but
before courts-martial and courts of inquiry, "the person charged shall, at his own
request, but not otherwise, be a competent witness." It is added: "And his failure
to make such request shall not create any presumption against him." But parties
testifying under this act have no exceptional status or privileges; they must take the
stand and be subject to cross-examination like other witnesses. The submission by
the accused of a sworn written statement is not a legitimate exercise of the authority
to testify conferred by the statute, and such a statement should not be admitted in
evidence by the court. (6)
The testimony of the defendant in a criminal case is to be considered and weighed
by the jury, taking all the evidence into consideration, and such weight is to be given
a See G. C. M. O. 3, H. Q. A., 1870, in which is incorporated an opinion of the Judge- Advocate-General
on the subject.
bSee the general orders cited in the note to " Evidence"— a co-conspirator is a competent witness
upon the trial of an indictment for conspiracy. U. S. v. Sacia, 2 Fed. Rep., 754. The evidence of an
accomplice, though uncorroborated, is to be considered for what it is worth. U. S. v. Hemming, 18
ibid., 907.
714 MILITARY LAWS OF THE UNITED STATES.
to it as in their judgment it ought to have. Wilson v. U. S., 162 U. S., 13; Hicks v.
U. S., 150 U. S., 442, 452; Allison v. U. S., 160 U. S., 203. See, also, Edgington v.
U. S., 164 U. S., 361.
CRIMINATING QUESTIONS.
The privilege, recognized by the common law, of a witness to refuse to respond to
a question the answer to which may criminate him, is a personal one, which the
witness may exercise or waive, as he may see fit. It is not for the judge-advocate or
accused to object to the question or to check the witness, or the court to exclude the
question or direct the witness not to answer. Where, however, he is ignorant of his
right, the court may properly advise him of the same. But where a witness declines
to answer a question on the ground that it is of such a character that the answer
thereto may criminate him, but the court decides that the question is not one of this
nature and that it must be answered, the witness can not properly further refuse to
respond, and, if he does so, will render himself liable to charges and trial under article
62. Dig. Opin. J. A. G., par. 2474.
It is not sufficient to excuse the witness from testifying that he may, in his own
mind, think his answer to the question might, by possibility, lead to a criminal charge
against him, or tend to convict him of it if made. The court must be able to perceive
that there is reasonable ground to apprehend danger to the witness from his being
compelled to answer. U. S. v. McCarty, 18 F. R., 87.
Upon a trial of a cadet of the Military Academy, the court (against the objection of
the accused) required another cadet, introduced as a witness for the prosecution, to
testify as to facts which would tend to criminate him. Held, that such action was
erroneous, the not answering in such cases being a privilege of the witness only, who
(whether or not objection were made) could refuse to testify, and who, if ignorant
of his rights, should be instructed therein by the court. Dig. Opin. J. A. G. , par. 1308.
Section 860, Revised Statutes.— In the case of Tucker v. United States (151 U. S., 164,
168) the Supreme Court of the United States has placed an interpretation upon cer-
tain clauses of section 860, Revised Statutes. That section contains the requirement
that " no pleading of a party, nor any discovery or evidence obtained from a party or
witness by means of a judicial proceeding in this or any foreign country, shall be
given in evidence or in any manner used against him or his property or estate, in any
court of the United States, in any criminal proceeding, or for the enforcement of any
penalty or forfeiture: Provided, That this section shall not exempt any party or wit-
ness from prosecution and punishment for perjury committed in discovering or testi-
fying as aforesaid." In its decision the court held that " pleadings of parties " are
the allegations made by the parties to a civil or criminal case for the purpose of defi-
nitely presenting the issue to be tried and determined between them. "Discovery
or evidence obtained from a witness by means of a judicial proceeding" includes only
facts or papers which the party or witness is compelled by subpoena, interrogatory,
or other judicialprocess to disclose, whether he will or no, and is inapplicable to testi-
mony voluntarily given or to documents voluntarily produced. The clause as to dis-
covery or evidence is conceived in the same spirit as the fifth amendment of the
Constitution, declaring that "no person shall be compelled in any criminal case to
be a witness against himself;" and as the act of March 16, 1878 (20 Stat. L., 30),
enacted that a defendant in any criminal case may be a witness at his own request,
but not otherwise, and that his failure to make such request shall not create any pre-
sumption against him. Tucker v. U. S., 151 U. S., 164, 168; Boyd v. U. S., 116 U. S.,
616; Wilson v. U. S., 149 U. S., 60; Lees r. U. S., 150 U. S., 476. No statute which
(like section 860, R. S.) leaves the party or witness subject to prosecution, after he
answers the criminating question put to him, can have the effect of supplanting the
privilege conferred by the Constitution. Counselman v. Hitchcock, 142 U. S., 547.
The immediate object of the legislation of February 25, 1868, from which section
860, R. S., is taken, was to protect against certain forfeitures agents of the Confederate
States whose testimony in regard to assets of the Confederacy it was desired to obtain
abroad. Congressional Globe, 2d sess. , 40th Cong. , part 2, p. 1334.
A witness can not avoid answering any question by the mere statement that the
answer would tend to incriminate him, without regard to whether the statement is
reasonable or not. On the contrary, it is for the judge before whom the question
arises to decide whether an answer thereto may reasonably have a tendency to crimi-
nate the witness, or to furnish proof of an element or link in the chain of evidence
necessary to convict him of a crime. Ex parte Irvine, 74 Fed. Rep., 954; ex parte
Wagner, ibid. "To entitle a party called as a witness to the privilege of silence, the
court must see, from the circumstances of the case and the nature of the evidence
which the witness is called upon to give, that there is reasonable ground to apprehend
danger to the witness from his being compelled to answer," but that "if the fact of
the witness being in danger be once ma<le to appear, great latitude should be allowed
MILITARY LAWS OF THE UNITED STATES. 715
DOCUMENTARY EVIDENCE.
1818. Copies of any books, records, papers, or documents pa^|nt °fr ?c-
in any of the Executive Departments, authenticated under ords and pftPers-
the seals of such Departments, respectively, shall be c sept. 515^ ™«
admitted in evidence equally with the originals thereof.1 c%fesS^v IMP*
347; May 31, 1854, c. 60, s. 2, v. 10, p. 297. Sec. 882, R.' S.'
to him in judging for himself of the effect of any particular question, there being no
doubt * * that a question which might appear at first sight a very innocent
one might, by affording a link in the chain of evidence, become the means of bringing
home an offense of the party answering. ' ' Ex parte Reynolds, 20 Chancery Div. , 294;
Regina v. Boyes, 1 Best and S. 329; People •<>. Mather, 4 Wendell, 229; Wharton, Grim.
Evid., sec. 469, note 1.
On the trial of a cadet at the Military Academy, a witness declined to answer cer-
tain questions upon the ground that the answers might criminate him. Upon being
directed by the court to answer the questions to which the above objection had been
made, the witness (a cadet) persisted in his refusal. For this charges were preferred
and the cadet was brought to trial, found guilty, and sentenced to dismissal. The
Secretary of War in reviewing the case remarked that ' ' it was the province of the
court to determine, under all the circumstances of the case, whether the accused
should answer the questions propounded to him as a witness. He should have sub-
mitted to that decision." G. C. M. O., No. 23, War Dept., 1873.
1 Public docummts. — The muster rolls on file in the War Department are official rec-
ords, and copies of the same, duly certified, are primary evidence of the facts origi-
nally entered therein and not compiled from other sources, (a) subject, of course, to
be rebutted by evidence that they are mistaken or incorrect. So, though such rolls
are evidence that the soldier was duly enlisted or mustered into the service, and is
therefore duly held as a soldier, they may be rebutted in this respect by proof of
fraud or illegality in the enlistment or muster (on the part of the representative of
the United States or otherwise), properly invalidating the proceeding and entitling
the soldier to a discharge. (But that the entries in such rolls are not proof of the
commission of an offense, as desertion; for example, see Desertion.) Dig. Opin. J.
A. G., par. 1293.
General orders issued from the War Department or Headquarters of the Army may
ordinarily be proved by printed official copies in the usual form. The court will, in
general, properly take judical notice of the printed order as genuine and correct.
A court-martial, however, should not, in general, accept in evidence, if objected to,
a printed or written special order (which has not been made public to the Army)
without some proof of its genuineness and official character, (b) Ibid., par. 1294; see
also par. 1312.
The "enlistment paper," the "physical examination paper," and the "outline
card ' ' are original writings made by officers in the performance of duty and compe-
tent evidence of the facts recited therein. Copies, authenticated under the seal of
the War Department, according to section 882, Revised Statutes, are equally admis-
sible with the originals. Ibid., par. 1310.
A descriptive list is but secondary evidence and not admissible to prove the facts
recited therein. It is not a record of original entries, made by an officer under a
duty imposed upon him by law or the custom of the service, but is simply a com-
pilation of facts taken from other records. Ibid., par. 1314.
The morning report book is an original writing. To properly admit extracts in
evidence, the book should be first identified by the proper custodian, and the extracts
then not merely read to the court by the witness, but copied, and the copies, properly
verified, attached as exhibits to the record of the court. Ibid. par. 1313.
Official books and papers pertaining to the administration of a military post are
produced and identified by their proper custodians — papers from the post headquar-
aBut note in this connection the ruling of the supreme court of Massachusetts in the case of Han-
son v. S. Scituate, 115 Mass., 336, that an official certificate from the Adjutant-General's Office to the
effect that certain facts appeared of record in that office, but which did not purport to be a transcript
from the record itself, and was therefore simply a personal statement, was not competent evidence of
such facts.
Ithasbeen held by the United States Supreme Court in a recent case, Evanston v. Gunn, 9 Otto,
660, that the record made by a member of the United States Signal Corps of the state of the weather
and the direction and velocity of the wind on a certain day was competent evidence of the facts
reported, as being in the nature of an official record kept by a public officer in the discharge of a
public duty.
6 See a similar ruling in G. O. 121, Second Military District, 1867.
7l6* MILITARY LAWS OF THE UNITED STATES.
ori?? ie! tc r Yn 1819. Copies of any documents, records, books, or papers
Srth^rlalury01" in the office of the Solicitor of the Treasury, certified by
c eibs ?\ 984p' him undef the seal of his office, or, when his office is vacant,
**Lc. sss, R. s. ^J ^e °fficer acting as Solicitor for the time, shall be
evidence equally with the originals.
fro^booSksrietc's 1820. When suit is brought in any case of delinquency
in ^uit^agSnst °^ a revenue officer, or other person accountable for pub-
d6Mar U3ni?97 c ^c moneji a transcript from the books and proceedings of
Mar 3' m7Pc545; ^e Treasury Department, certified by the Secretary or an
July si 3>iS9436s: Assistant Secretary of the Treasury and authenticated
^Sec^'s? '2R\ under the seal of the Department, or, when the suit in-
volves the accounts of the War or Navy Departments,
certified by the Auditors respectively charged with the
examination of those accounts, and authenticated under
the seal of the Treasury Department, shall be admitted as
evidence, and the court trying the cause shall be authorized
to grant judgment and award execution accordingly. And
all copies of bonds, contracts, or other papers relating to,
or connected with, the settlement of any account between
the United States and an individual, when certified by such
auditor to be true copies of the originals on file, and au-
thenticated under the seal of the Department, may be
annexed to such transcripts, and shall have equal validity,
and be entitled to the same degree of credit which would
be due to the original papers if produced and authenticated
in court: Provided, That where suit is brought upon a bond
or other sealed instrument, and the defendant pleads unon
est factum," or makes his motion to the court, verifying
such plea or motion by his oath, the court may take the
same into consideration, and, if it appears to be necessary
for the attainment of justice, may require the production
of the original bond, contract, or other paper specified in
such affidavit.1 Sec. 17, act of July 31, 1894 (®# Stat. L.,
210).
ters by the post commander or adjutant; papers belonging to regimental headquarters
by the colonel or regimental adjutant; from the Quartermaster's Department by the
post quartermaster; from the Subsistence Department by the post commissary, etc.
After having been submitted and identified, and used for evidential purposes, they
are attached to the record, or, more frequently, restored to their proper custody, the
fact of their submission being noted in the record.
Copies of pay accounts (charged to have been duplicated) are admissible in evi-
dence where the accused has by its own act placed the originals beyond the reach of
process and fails to produce them in court on proper notice. So where the originals
are in the hands of a person who has left the United States, so that they can not
be reached, on notice to the accused to produce them, or otherwise. Ibid., par. 1315.
1 Walton v. U. S., 9 Wh., 651; U. S. v. Buford, 3 Pet., 12; Smith v. IT. S., 5 Pet., 292;
Cox v. U. S., 6 Pet., 172; U. S. v. Jones, 8 Pet., 375; Gratiot v. U. S., 15 Pet, 336;
U. S. v. Irving, 1 How., 250; Hoyt t>. U. S., 10 How., 109; Bruce v. U. S., 17 How.,
437; U. S. v. Edwards, 1 McLean, 467; U. S. v. Hilliard et al., 3 McLean, 324; U. S.
v. Lent, 1 Paine, 417; U. S. v. Martin, 2 Paine, 68; U. S. v. Van Zandt, 2 Cr. C. C.,
MILITARY LAWS OF THE UNITED STATES. 717
1821. Upon the trial of any indictment against any per- f^^^of thl
son for embezzling public moneys, it shall be sufficient evi- JicTSIn^ for
dence, for the purpose of showing a balance against suc
person, to produce a transcript from the books and pro-
ceedings of the Treasury Department, as provided by the J, ™> g|°'
preceding section. * Sec* 8^' B' s*
1822. A copy of any return of a contract returned and
nled in the returns office of the Department of the Interior, e 2 1862 c
as provided by law, when certified by the clerk of the said ^2 s- 4> v- 12> P-
office to be full and complete, and when authenticated by Sec- 888» K- s>
328; U. S. v. Griffith, 2 Cr. C. C., 336; U. S. v. Lee, 2 Or. C. C., 462; U. S. v. Harrill,
1 McAlL, 243; U. S. v. Mattison, Gilp, 44; U. S. v. Corwin, 1 Bond, 149; U. S. v.
Gaussen, 19 Wall., 198.
The transcripts from the books and proceedings of the Treasury Department were
admissible in evidence as sufficient transcripts within section 88 of the Eevised Stat-
utes, and the certificate which certified that the papers annexed thereto were true
copies of the originals on file, and of the whole of such originals, was a full compli-
ance with law. Moses v. U. S., 166, U. S. 571; U. S. v. Pinson, 102 U. S., 548; U. S.
v. Bell, 111 U. S., 477.
Though certified copies of the books and accounts of the Treasury Department are,
by statute, made evidence in favor of the Government in actions against alleged delin-
quents, they are not conclusive, and, if reply is made thereto, the case is to be decided
on all the evidence. U. S. v. Young, 44 Fed. Eep., 168; U. S. v. Curlevitz, 80 ibid.,
852.
1 Except by the consent of the opposite party, the testimony contained in the record
of a previous trial of the same or a similar case can not properly be received in evi-
dence on a trial by court-martial; nor can the record of a board of investigation
ordered in the same case be — otherwise — so admitted. In all cases (other than that
provided for by the one hundred and twenty-first article ^ of war) testimony given
upon a previous hearing, if desired to be introduced in evidence upon a trial, must
(unless it be otherwise specially, stipulated between the parties) be offered de novo
and as original matter. Dig. Opin. J. A. G., par. 1291.
At the trial, in 1894, of an officer charged with a disorder and breach of discipline
which involved the killing by him of another officer, there was offered in evidence,
on the part of the accused, to exhibit the character and disposition of the officer
killed, a copy of a general court-martial order of 1872, setting forth certain charges
alleging dishonest and unbecoming conduct upon which the latter officer was then
tried and convicted, and the findings of the court thereon. Held, that such evidence
was wholly inadmissible for the purpose designed. Ibid., par. 1317.
Private documents. — To the admission in evidence of a letter written and signed by
, the accused (of which the introduction is contested) proof of his h andwriting is neces-
sary. Evidence of handwriting by comparison is not admissi ble at common law
except where the standard of comparison is an acknowledge d or proved genuine
writing already in evidence in the case. A writing not in evidence and simply offered
to be used as a standard is not admissible. Ibid., par. 1316.
Strictly speaking, a press copy is secondary to the original document from which
it is taken. Such a copy is receivable in evidence on proof of the loss of the original.
At the best, however, it continues secondary; hence it has been held that a copy can
be produced from a press copy of a lost writing without producing the principal
copy . Photographs and other reproductions are secondary. 1 Wharton Ev. , sec. 93.
Where the standards of comparison are properly in evidence for another purpose,
the handwriting may be compared. Green v. Terwilliger, 56 Fed. Kep., 384; Moore
v. U. S., 91 U. S., 274; Williams v. Conger, 125 U. S., 933. A writing specially pre-
pared for the purpose of comparison is inadmissible on a question of genuineness.
Hickory v. U. S., 151 IT. S., 303; King r. Donohue, 110 Mass., 155; Williams v. State,
61 Alabama, 33, 40, 83.
Handwriting can not be proved by comparison with letters not admitted to be
genuine nor belonging to the witness' testify ing as to the party's handwriting, and
produced in court in confirmation or explanation of his testimony, (a) U. S. v.
McMillan, 29 Fed. Rep., 247; xvn Opin. Att. Gen., 310.
a The jury in a criminal case are not bound by the expert evidence as to handwriting any further
than it coincides with their own opinion or than they think it deserves to be credited. U. S. v. Molloy,
31 Fed. Rep., 19.
718 MILITARY LAWS OF THE UNITED STATES.
the seal of the Department, shall be evidence in any pros-
ecution against any officer for falsely and corruptly swear-
ing to the affidavit required by law to be made by such
officer in making his return of any contract, as required by
law, to said returns-office.
th!xjroauCmaisTf 1823. Extracts from the Journals of the Senate or of
c. ^e House of Representatives, and of the Executive Jour-
.' nal °f the Senate when the injunction of secrecy is removed,
certified by the Secretary of the Senate or by the Clerk of
the House of Representatives, shall be admitted as evidence
in the courts of the United States, and" shall have the same
force and effect as the originals would have if produced
and authenticated in court.
ord°spielt?f r!n 1824' Copies °f a*l official documents and papers in the
states °f consult °^ce °^ any consulj vice-consul, or commercial agent of the
' United States, and of all official entries in the books or
J?in. o, loby, c.
7'«- 15'Q£«2«6'C records of any such office, certified under the hand and seal
OCC« o"t5} It. N«
of such officer, shall be admitted in evidence in the courts
of the United States.
ne acts °^ ^e legislature °f anJ State or Terri-
or °^ any coun^rJ subject to the jurisdiction of the
of United States, shall be authenticated by having the seals
iiMvy'f 'p79i22: °^ SUC^ State, Territory, or country affixed thereto. The
56*s'22v ' 2^299' recor^s an(* judicial proceedings of the courts of any State
sec.' 965',%. s.' or Territory, or of any such country, shall be proved or
admitted in any other court within the United States,
by the attestation of the clerk, and the seal of the court
annexed, if there be a seal, together with a certificate of
the judge, chief justice, or presiding magistrate, that the
said attestation is in due form. And the said records and
judicial proceedings, so authenticated, shall have such
faith and credit given to them in every court within the
United States as they have by law or usage in the courts
of the State from which they are taken.1
Ferguson v. Harwood, 7 Cr., 408; Mills v. Duryea, 7 Cr., 481; IT. S. v. Amedy, 11
Wh., 392; Buckner?. Finley, 2 Pet., 592; Owings v. Hull, 9 Pet., 627; Urtetiqui v.
D'Arbel, 9 Pet., 700; McElmoylev. Cohen, 13 Pet., 312; Stacey v. Thrasher, 6 How.,
44; Bank of Alabama v. Dalton, 9 How., 522; D'Arcy v. Ketchum, 11 How., 165;
Kailroad v. Howard, 13 How., 307; Booth v. Clark, 17* How., 322; Mason v. Lawra-
son, 1 Cr. C. C., 190; Buford v. Hickman, Hemp., 232; Craig v. Brown, Pet. C. C..
354; Stewarts. Gray, Hemp., 94; Gardner v. Lmdo, 1 Cr. C. C., 78; Trigg v. Con-
way, Hemp., 538; Turner i-. Waddington, 3 Wash. C. C., 126; Catlin v. Underbill,
4 McL., 199; Morgan v. Curtenius, 4 McL., 366; Hale v. Brotherton, 3 Cr. C. C., 594;
Mewster v. Spalding, 6 McL., 24; Parrot v. Habersham, 1 Cr. C. C., 14; Talcott v.
Delaware Ins. Com., 2 Wash. C. C., 449; James v. Stookey, 1 Wash. C. C., 330; Ben-
nett?;. Bennett, Dist. Crt, Oregon, 1867.
The courts of the United States take judicial notice of the public statutes of the
several States. Merchants Exch. Bank v. McGraw, 59 Fed. Kep., 972; Owings v.
MILITARY LAWS OF THE UNITED STATES. 719
1826. All records and exemplifications of books which
may be kept in any public office of any State or Territory,
or of any country subject to the jurisdiction of the United
States, not appertaining to a court, shall be proved or ad- g>- Jf^gf6
mitted in any court or office in any other State or Terri- l6^ 4^ B g
tory, or in any such country, by the attestation of the
keeper of the said records or books, and the seal of his
office annexed, if there be a seal, together with a certificate
of the presiding justice of the court of the county, parish,
or district in which such office may be kept, or of the gov-
ernor, or secretary of state, the chancellor or keeper of
the great seal of the State, or Territory, or country, that
the said attestation is in due form, and by the proper offi-
cers. If the said certificate is given by the presiding
justice of a court, it shall be further authenticated by the
clerk or prothonotary of the said court, who shall certify,
under his hand and the seal of his office, that the said
presiding justice is duly commissioned and qualified; or,
if given by such governor, secretary, chancellor, or keeper
of the great seal, it shall be under the great seal of the
State, Territory, or country aforesaid in which it is made.
And the said records and exemplifications, so authenti-
cated, shall have such faith and credit given to them in
every court and office within the United States as they
have by law or usage in the courts or offices of the State,
Territory, or country, as aforesaid, from which they are
taken.
1827. The edition of the laws of the United States, pub- little & Brown's
edition of the
lished by Little & Brown, shall be competent evidence of gatutestobeev-
the several public and private acts of Congress, and of the l(^y^ ^ g846^-
several treaties therein contained, in all the courts of law sec". OOS/K." s.'
and equity and of maritime jurisdiction, and in all the tri-
bunals and public offices of the United States, and of the
several States, without any further proof or authentication
thereof.1
Hull, 9 Peters, 625; Bank v. Francklyn, 120 U. S., 747; Lamar v. Micou, 114 U.S
857; Gormley v. Bunyan, 138 U. S., 453.
The testimony of a credible witness, whether a lawyer or a layman, with reason-
able means of information, to the effect that a volume containing what purports to
be a statute of a foreign country is commonly received in the business and courts of
such country as such, is competent and sufficient proof of the existence of such
statute. Dundee Mortgage and Investment Co. r. Cooper, 26 Fed. Rep., 665.
1 See, in respect to the Revised Statutes and Statutes at Large of the United States,
paragraphs 454-486, ante.
720 MILITARY LAWS OF THE UNITED STATES.
DEPOSITIONS.
Si5rt o? war. 1828- The deposition1 of witnesses residing beyond the
limits of the State, Territory, or district in which any
military court may be ordered to sit, if taken on reason-
able notice to the opposite party and duly authenticated,2
1 Procedure. — The party, prosecutor or defendant, desiring the deposition, submits
to the court a list of interrogatories to be propounded to the absent witness; the
opposite party then prepares and submits a list of cross-irfterrogatories, a reasonable
time being allowed for this purpose; redirect and recross-interrogatories are added,
if desired; finally the court, having assented to the interrogatories thus submitted,
adds such as in its judgment may be necessary to elucidate the whole of the witness's
testimony.
The interrogatories having been accepted by the court, the judge-advocate will
prepare duplicate subpoenas requiring the witness to appear in person, at a time and
place to be fixed by the officer, military or civil, who is to take the deposition. If
the name of this officer is not known, the space for it will be left blank. (a)
The judge-advocate will then send the interrogatories and subpoenas to the con-
vening authority, with a request that the deposition be secured.
Depositions may also be taken before the assembling of the court-martial, on inter-
rogatories and cross-interrogatories or reasonable notice, subject to exceptions when
read in court.
Judge-advocates of departments and of courts-martial, and the trial officers of
summary courts, are authorized to administer oaths and take depositions. If none
of these officers are available, any other army officer may be designated to see that
the deposition is properly taken; (6) but the oath in such a case must be adminis-
tered and the deposition authenticated by a civil officer empowered by law to
administer oaths for general purposes.
Upon the return of the interrogatories and deposition they will be submitted to
the court by the president or judge-advocate. The papers will then be properly
marked, appended to the record, and referred to in the proceedings, where all action
upon the subject necessary for the information of the reviewing authority will be
recorded.
Upon the receipt of the deposition, the judge-advocate will also prepare and sign
the ordinary " accounts for a civilian witness," substituting for the usual statement
in regard to attendance before the court a statement that he duly attended as a wit-
ness at a certain time and place and duly gave his deposition before a certain official
named, and then transmit them to the witness with duplicate copies of the order
convening the court. The period of attendance can be ascertained from the deposi-
tion. Manual for Courts-Martial, pp. 37 and 38.
2 The article, in specifying that the deposition, to be admissible in evidence, shall
be "duly authenticated," makes it essential that the same shall be sworn to before —
i. e., taken under an oath administered by — an official competent to administer oaths
for such purpose. A deposition should now be sworn to before one of the military
officers specified in section 4 of the act of July 27, 1892, or if such an officer be not
accessible, by a civil official competent to administer oaths in general. An official
empowered to administer oaths only for a certain special purpose or purposes can
not legally qualify a witness whose deposition is sought to be taken under this article.
A deposition, introduced by either party, which is not "duly authenticated,"
should not be admitted in evidence by the court, although the other party may not
object. A deposition held irregular and inadmissible where it failed to show that the
officer by whom it was taken was authorized to take it, or that he was qualified to
administer the path to the witness. Dig. Opin. J. A. G., par. 263.
A court-martial has no power to qualify or authorize a commanding officer, or any
other officer or person, to take a deposition or administer an oath. Ibid., par. 265.
a The judge-ad vacate, in forwarding the interrogatories for a deposition, should transmit with them
a subposna (in duplicate) requiring the witness to appear at a stated place and date before a certain
person who is to take the deposition. Particulars not ascertained may be left blank, to be supplied
by the officer or person by whom the subpoena is served. When the deposition has been duly taken
and returned, the judge-advocate should transmit to the witness (or to some officer, etc., for. him) the
usual certificate of attendance (accompanied by a copy of the convening order), the duration of the
attendance to be ascertained from the deposition. Dig. Opin. J. A. G., par. 1553.
6 The officer detailed to have a deposition taken, i. e., to see to its being taken, should, before serv-
ing the subprena, complete it, if necessary, by inserting the name and official designation of the
notary (or other official having authority to administer the oath) before whom it is to be taken, and
the date on which and the place where it is proposed to take it. And when the deposition has been
duly taken, he should certify it as so taken, and transmit it in a sealed package to the president of
the court. Ibid., par. 269.
MILITAEY LAWS OF THE UNITED STATES. 721
may be read in evidence1 before such court in cases not
capital.2 Ninety -first Article of War.
1 This article, in any case within its terms and in which its conditions are complied
with, entitles either party to have depositions taken and "read in evidence." The
court alone has no power to decide that a deposition, where legal and material, shall
not be taken. Dig. Opin. J. A. G., par. 262.
Where the judge-advocate offered in evidence, on the part of the prosecution, a
deposition which proved to have been given by a person other than the one to whom
the interrogatories were addressed, and the accused objected to its introduction, but
the objection was overruled by the court, held error; the fact that the intended depo-
nent was but the agent, in the transaction inquired about, of the person who actually
furnished the deposition not being sufficient to make such deposition admissible
except by consent of parties, (a) Ibid., par. 261.
The party at whose instance a deposition has been taken can not be admitted,
against the objection of the other party, to introduce only such parts of the deposi-
tion as are favorable to him or as he may elect to use; he must offer the deposition
in evidence as a whole or not offer it at all. Ibid., par. 258.
If the party at whose instance a deposition has been taken decides not to put it in,
it may be read in evidence by the other party. One party can not withhold a
deposition (duly taken and admissible under this article) against the consent of the
other. Ibid., par. 259.
2 A deposition can not be read in evidence in a capital case, as in a case of a viola-
tion of article 21, or a case of a spy, or one of desertion in time of war; otherwise in
a case of desertion in time of peace. Nor is the deposition admissible of a witness
who resides in the State, etc. , within which the court is held, except by consent.
Ibid., par. 256.
A deposition duly taken, under the article, on the part of the prosecution, is not
subject to objection by the accused and can not be rejected by the court merely upon
the ground that it is declared in the sixth amendment to the Constitution that "in
all criminal prosecutions the accused shall enjoy the right * to be confronted
with the witnesses against him." This constitutional provision has no application to
courts-martial; the "criminal prosecutions" referred to are prosecutions in the
United States civil courts. Ibid., par. 272.
A deposition is not in general satisfactory evidence for purposes of personal
identification by description, and should not be resorted to for the identification of
an accused where reliable oral testimony can be obtained. Ibid., par. 266.
The depositions of civilian witnesses, while their taking generally involves less
expense than would the personal attendance of the parties, are usually quite suffi-
cient as testimony, except when the purpose of the evidence is to personally identify
the accused before the court. Ibid., par. 267.
Civilian witnesses who duly give their depositions under this article are entitled
to the same fees and allowances as are witnesses who duly attend the court in person.
(See Circular No. 9 ( H. Q. A. ) 1883. ) The voucher, to enable such a witness to obtain
his dues, should simply set forth the facts as to his service, substituting, for the usual
statement in regard to attendance before the court, a statement that he duly attended
as a witness at a certain time and place, and duly gave his deposition before a certain
official named. Ibid., par. 270.
Held that duly attending by a civilian witness before a duly authorized official to
give a deposition to be used *in evidence on a military trial was to be regarded as
practically equivalent to attending a court-martial, and that the deponent was entitled
to be paid the usual allowances (i. e., the same as those of witnesses appearing before
the court) out of the regular appropriation for the "compensation of witnesses
attending before courts-martial." Ibid., par. 2484.
The so-called depositions ("affidavits or depositions") referred to in paragraph
683, Army Regulations, are entirely distinct from the depositions provided for in
article 91, being merely sworn ex parte statements used for the purpose of settling
questions of "property accountability." The regulation has no application what-
ever to depositions proper of the class authorized by this article. (6)
aSee Gen. Court-Martial Orders, No. 9, H. Q. Army, 1879.
6 In the case of Private Harnett, tried for desertion in 1873 and convicted, the proceedings were
disapproved in part on account of the admission by the court of an ex parte affidavit in support of the
case for the prosecution. As the facts which it was proposed to prove by the affidavit had been
admitted by the accused, and as no injury resulted to the accused by the error of the court, the find-
ings and sentence were approved. General Court-Martial Orders, No. 33, War Dept, 1873.
22924
MILITARY LAWS OF THK VNITKP STATES.
THE FINDING.
1829> Members of a court-martial, in giving their votes,
shall begin with the youngest in commission.1 ^Ninety-
fifth Article of War. '
1 The term "youngest in commission" as used in this article has been uniformly
interpreted to "mean "junior in rank," and votes are therefore cast in the inverse
order of rank, the member junior in rank casting the first vote.
A tie vote upon any proposition submitted to the court is equivalent to a vote in
the negative — a majority vote being necessary to a determination in the affirmative —
and the proposition is not approved. Where the vote is a tie upon an objection to
testimony, the objection is not sustained. Where it is tied upon a certain proposed
finding or form of sentence, the same is not adopted.
rilK KIN1HN*.;.
There should be a separate and independent finding upon each charge and specr
fication, and each separate finding should cover the charge or specification as to
which it is made; so that if any chanre or specification is deemed by the court to be
proved only in part, the finding shall show specifically what is found to IK proved
and what not. Dig. Opin. J. A. G., par. LSI
The finding of the court should be governed by the evidence considered in con-
nection with the plea. When* no evidence is introduced, the general rule is that the
finding should conform to the plea. Ibid., par. 1
The finding on the charge should be supported by the finding on the s[Kvifieation
(or specifications), and the two findings should be consistent" with each other. A
finding of guilty on the charge would Iv quite inconsistent with a finding of not
guilty, or gn.ilty* without attaching criminality, on the specification, So a finding? of
guilty upon a well-pleaded specification, ftpfKtfnfttothfi charge, followed by a finding
of not guilty either of the offense charged or some lesser offense included in it, would
be an incongruous verdict. No matter how many specifications there may be, it
requires a finding, of guilty or not guilty, on but one specification (apposite to the
charged to support a similar finding lipon'the charge. Ibid., par. l;>
It is not competent for a court-martial to find an accused not guilty of the specifica-
tion, and yet guilty of the charge, where there is but one specification. By finding
him not giiiltv of the specification, they acquit him of all that goes to constitute the
offense described in the charge. Where the court Ivlieve that the accused is guilty
of the charge, but not precisely as laid in the specification, they should find him
guilty of the latter, but with such exceptions or substitutions as may be necessary to
present the facts as proved on the trial, and then guilty of the charge. Ibid., par.
1356.
In finding guilty upon a specification — to except from such finding the word or
words which express the gravamen of the act as charged and found, is contradictory
and irregular. As — from ft finding of guilty on a specification to a charge of fraud
under Art. t>0, to specially except the word"" fraudulent" or ••fraudulently," while
at the same time finding the accused guilty generally upon the charge. Ibid., par.
Where, upon the finding, the vote on a charge or specification is ^Vtf, the accused
is, in law, found not guilty thereon; a majority vote being necessary to any convic-
tion. A statement iii the record to the effect that the vote upon a specification, etc.,
.1 fcV, and that the accused was therefore acquitted, is of course irregular and
improper.a Ibid., par. •
options and wbstiiutHms.— It is a peculiarity of the finding at military law that
a court-martial, where of opinion that any portion of the allegations in a specification
: proved, is authorized to find the accused guilty of a part of a specification only,
excepting the remainder: or, in finding him guilty of the whole ^or any part), to «t6-
*ihtff coned words or allegations in the place of such as are shown by the evidence
to have been inserted through error. And provided the exceptions or substitutions
o As to the offense and irregularity involved in stating that a particular finding was unanimous, 8e»
the 8tth Article of War, see also th
As the affirmative of any proposition can be adopted by a court-martial .jority vote,
and as all tie rotes on the findings inure to th, :tal thereon
ahould have been recorded. U. c. M. 0. 17. War Dcpt.. i>:i. See also O. C. M. O.. No. 1. War Dept..
MILITARY LAWS OF THE UNITED STATES. 723
1830. Whenever a court-martial shall sit. in < -lowed ses- .
sion the judge-advocate shall withdraw, and when his legal2- v- 27» P- 278-
advice or a— i-t;mee in referring to the recorded evidence
leave the specification still appropriate to the charge and legally sufficient thereunder,
the court may then properly find the accused guilty of the charge in the usual man-
ner. Dig. Opin. .1. A. <;., par. 1 :;.V>.
Familiar instances of the exercise of the authority to except and substitute in a find-
ing of guilty occur in cases where, in the specification, the name or rank of the
"d, or some other person, is erroneously designated, or there is an erroneous
averment of time or place, or a mistaken date, or an incorrect statement as to amount,
quantity, quality, or other particular, of funds or other property, etc. Ibid., par. 1357.
In a case where a court-martial made such exceptions and substitutions in its find-
ing upon the specification to a charge of " Forgery to the prejudice of good order and
military discipline" as to negative the material allegation 01 false writing and leave
no tapu basis for the finding arrived at of guilty of the charge — advised that the find-
ing- be- disapproved as incongruous and insufficient to sustain the sentence. Ibid.,
par. i:w;.
/''i-i,(li/i(/ of a minor included offense. — The practice of making exceptions and sub-
stitution' in the findings is well illustrated by the finding — authorized at military
law when called for by the evidence (a) — of a leaser kindred offense included a* a corustttu-
erd dement in the specific offense charged, (b) Of this form of verdict the most familiar
instance is the finding ofguilty of absence without leave under a charge of desertion.
A full acquittal of desertion includes, of course, an absence without leave involved in
it; but where the evidence falls short of establishing a desertion, but shows an unau-
thorized absenting of himself by the accused, he niay and should be convicted of
ab.-crice without leave as his actual offence. In arriving at this conclusion, the find-
ings on the epeciification and charge should be consistent, and the finding on the for-
mer should be euch as to support the latter. In their finding of guilty upon the
specification, the court should in terms except from its application such words of the
specification as allege or describe desertion exclusively, and substitute words describ-
ing the lesser offense; the words "did desert," for example, being excepted, and the
words ' ' did absent himself without authority" being substituted. The finding on
the charge should regularly be "not guilty, but guilty of absence without leave, (c)
Ibid., par. I.'i59.
But the authority to find guilty of a minor included offense, or otherwise to make
exceptions or substitutions in the finding, can not justify the conviction of the
accused of an offense entirely separate and distinct in its nature from that charged.
Thus held that it was not a finding of a lesser included offense to find the accused
guilty merely of absence without leave under a charge of a violation of the forty-second
Articleof Warin abandoning his post before the enemy. Audaoheldot a finding, under
a charge of a violation of article 39, of not guilty but guilty of a violation of article
40. So, where a soldier charged with "conduct to the prejudice of good order and
military discipline," in concealing the fact that a fellow soldier had appropriated to
his own use certain public property, was found not guilty of the specification as laid,
but. guilty of "having stolen the pioperty himself," and guilty of the charge, and
was accordingly sentenced to imprisonment— held that such a finding was manifestly
unauthorized. Having been found not guilty of the offense set forth hi the specifi-
cation, and which alone he was called upon to answer, he should have been acquitted
on both charge and specification; the offense of which he was found guilty was not
alleged against him, and not being included in that charged, could not properly form
the subject of a finding. The remission of his sentence therefore recommended.
Ibid., par. l.W).
It is. a further peculiarity of the finding at military law that, where an accused is
charged with "conduct unbecoming an officer and a gentleman," or with any ; spe-
cific offense made punishable by the Articles of War, and the court is of opinion
that while the material allegations in the specification or specifications are substan-
tially made out, they do not fully sustain the charge as laia, but do clearly establish
the commission of a neglect of military duty or a disorder in breach of military discip-
line, as involved in the acts alleged, the 'accused may properly be found guilty of
the specification (or specifications), and not guilty of trie charge, but guilty of "con-
duct to the prejudice of good order and military discipline.1' Sucn a form of "finding ia
aSee XIII Opins. At. Gen., 460.
6 Compare Reynolds r. People, 83 Ills., 479, and note the similar authority given in criminal cases
in the United States courts bv see. 1035, Rev. Stats.
cA simple finding, however, of guilty of absence without leave, though an irregular form, would
amount in law to an acquittal of the higher offense charged. Compare Morehead v. State, 34 Ohio
724 MILITARY LAWS OF THE UNITED STATES.
is required it shall be obtained in open court.1 Section
0, act of July 27, 1892 (27 Stat. L., 278).
SENTENCES.
Par.
1831. Sentences affecting general officers.
1832. Death sentences.
1833. Flogging, branding, marking, tat-
tooing, etc.
Par.
1834. Dismissal of officers.
1835. The same, cowardice or fraud.
1836. Suspension of officers.
1837. Confinement in penitentiary.
1®31- ^° sentence of a court-martial, either in time of
war. P^ce or in time of war, respecting a general officer, shall
be carried into execution, until it shall have been confirmed
by the President. 2 One hundred and eigJith Article of War.
now common in our practice (especially where the charge is laid under article 61),
and its legality is no longer questioned. Dig. Opin. J. A. G., par. 1361.
The authority thus to find, however, has not been extended beyond the case indi-
cated in the last paragraph; the reverse, for example, of this form of finding has
never been sanctioned. A finding of guilty of a certain specific offense, under a
charge of another specific offense, or under a charge of "conduct unbecoming an
officer and a gentleman," or of "conduct to the prejudice of good order and military
discipline," would be wholly irregular and invalid. Thus a finding of guilty of
disobedience of orders (or of a violation of article 21), under a charge of mutiny in
violation of article 22, or a finding of drunkenness on duty (or of a violation of article
38), under a charge for a drunken disorder laid under article 62 or 61, would be not
only unauthorized, but now almost unprecedented, and, if such a finding were made,
it could scarcely fail to be formally disapproved. And so of a finding of "conduct
unbecoming an officer and a gentleman" under a charge of "conduct to the preju-
dice of good order and military discipline." Ibid., par. 1362.
The general finding of "conduct to the prejudice," etc., in the cases above indi-
cated is sanctioned in order to prevent a failure of justice, not for the purpose of
relieving the accused of any of his due share of culpability. It should not therefore
be resorted to where the specific offense charged is substantially made out by the
testimony. Thus in a case where the facts set forth in the specification to a charge
of ' ' conduct unbecoming an officer and a gentleman, ' ' and clearly established by the
prejudice of good order and military discipl
accepted, but that the court should be reconvened for the purpose of inducing, if
practicable, a finding in accordance with the facts and with justice. Ibid., par. 1363.
It is an important part of the judgment of the court, in a case where the evidence
is conflicting, to determine the measure of the credibility to be attached to the sev-
eral witnesses. In its finding, therefore, the court may, in connection with the tes-
timony, properly take into consideration the appearance and deportment of the
witnesses on the stand and their manner of testifying, especially when under cross-
examination. Ibid., par. 1365.
1 All deliberation of the court takes place with closed doors. At other times, except
as to those persons who have been summoned as witnesses, a court-martial is open
to the public, military or otherwise, subject to the capacity of the room or tent in
which it is held, and the convenience of the court and parties before it. The presi-
dent orders the clearing of the court for deliberation, or any incidental discussion
when he may deem it expedient, or at the instance of a member; where it is more
convenient to do so the court withdraws for deliberation. In every case, however, in
which the court is cleared for any purpose whatever, the judge-advocate, under the
operation of the above statute, together with the accused and his counsel, the inter-
preters, reporters, witnesses, and spectators withdraw, leaving in the court only the
officers designated to compose it. Simmons, 454.
2 Procedure. — The best approved practice of military courts in determining upon their
sentences is believed to be as follows: For each member to write a sentence and deposit
it with the judge-advocate; and, no sentence having been adopted by a majority of
votes, for the court, after all the sentences have been read to it, to proceed to vote
upon them in the order of their severity, beginning with the least severe, until some
one of those proposed is agreed upon by a majority of votes. It is not essential, indeed,
MILITARY LAWS OF THE UNITED STATES.
1832. No person shall be sentenced to suffer death, except t£&ss.th sen'
by the concurrence of two-thirds of the members of a 96 Art- of War*
general court-martial, and in the cases herein expressly
mentioned.1 Ninety -sixth Article of War.
that this form, of voting should be pursued — it being open to the court, in its discre-
tion, to adopt a different one. Dig. Opin. J. A. G., par. 2308.
That, upon a conviction by a majority vote of the court, all the members of the
court, those who voted for an acquittal equally with those who voted for conviction,
must vote for some sentence — though formerly doubted — has long been established
ase, principle in our military law. While a member who voted for an acquittal can
not of course be compelled to vote a punishment, yet his persistent refusal to do so
would be a neglect of duty, rendering him amenable to a charge under article 62.
Ibid., par. 2309.
A sentence, to be valid, must of course rest upon an approved finding of guilty of
an offence for which the accused has been tried. Thus a duly approved finding of
guilty on one of several charges, a conviction upon which requires or authorizes the
sentence adjudged, will give validity and effect to such sentence, although the sim-
ilar findings on all the other charges are disapproved as not warranted by the testi-
mony. But a finding of guilty of a specification to a charge but not guilty of the
charge itself will not support a sentence, unless, indeed, there is added a conviction of
some lesser offence included in that charged. Ibid. , par. 2312.
A punishment, adjudged upon conviction of the accused on several charges, is valid
and operative provided it is a punishment legally imposable on conviction of any one
of the charges of which the conviction is duly approved by the reviewing authority.
Ibid., par. 2311.
The word "month" or "months," employed in a sentence, is to be construed as
meaning calendar month or months; the same significance being given to the term
as is now commonly given to it in the construction of American statutes in which the
word is employed. The old doctrine that "month," in a sentence of court-martial,
meant lunar month, has long since ceased to be accepted in our military law. Ibid.,
par. 2314.
A legal sentence of court-martial, when once duly approved and executed, can not
be reached by a pardon, nor revoked, recalled, modified or replaced by a milder
punishment, or other proceeding, either by the Executive or by Congress, (a) The only
remedy for a party who has suffered injustice from such a sentence is either a new
appointment to the Army by the President or some legislation within the province of
Congress relieving or indemnifying him for and on account thereof. Ibid. , par. 2323.
*A sentence of death imposed by a court-martial, upon a conviction of several
distinct offences, will be authorized and legal if any one of such offences is made
capitally punishable by the Articles of War, although the other offenses may not be
so punishable. Ibid., par. 285.
A court-martial, in imposing a death sentence, should not designate a time or
place for its execution, such a designation not being within its province but pertain-
ing to that of the reviewing authority. If it does so designate, this part of the sen-
tence may be disregarded and a different time or place fixed by the commanding
general. Ibid., par. 286.
Where a death sentence imposed by a court-martial has been directed by the proper
authority to be executed on a particular day, and this day, owing to some exigency
of the service, has gone by without the sentence being executed, it is competent for
the same authority, or his proper superior, to name another day for the purpose, the
time of its execution being an immaterial element of this punishment. (&) Ibid., par.
287.
Article VIII of the amendments to the Constitution prohibits the infliction of
a The well-established principles— that mere irregularities in the proceedings will not affect the
validity of an executed sentence, and that a legal sentence once duly confirmed and executed is "no
longer subject to review by the President "—so pointedly set forth(in 1843) in IVOpins.,274, are further
illustrated in XIV Id., 290, 432.
6 It was held by the Supreme Court, in Coleman v. Tennessee (7 Otto, 519-520) , that a soldier who had
been convicted of murder and sentenced to death by a general court-martial in May, 1865, but the
execution of whose sentence had been meanwhile deferred by reason of his escape and the pendency
of civil proceedings in his case, might at the date of the ruling "be delivered up to the military
authorities of the United States to be dealt with as required by law."
More recently it has been held in this case by the Attorney-General that the death sentence might
legally be executed notwithstanding the fact that the soldier had meanwhile been discharged from
the service, such discharge, while formally separating the party from the Army, being viewed as not
affecting his legal status as a military convict. But in view of all the circumstances of the case it
was recommended that the sentence be commuted to imprisonment for life or a term of years. XVI
Opin. Att. Gen,, 349.
f26 MILITARY LAWS OF THE tfltLTED STATES.
Pun£hm1entsted 1833- No person in the military service shall be punished
98 Art. of war. by flOgging? or ^y branding, marking, or tattooing on the
body. Ninety -eighth Article of War.
"cruel and unusual punishments." While this provision does not necessarily gov-
ern courts-martial, inasmuch as they are not a part of the judiciary of the United
States, (a) it should be observed as a general rule. Thus, where for an offence not
peculiarly aggravated a court-martial imposed upon a soldier, in connection with a
forfeiture of pay for six months, the further penalty of carrying a loaded knapsack
weighing twenty-four pounds every alternate hour from sunrise to sunset of each day
(Sundays excepted) during that period, held that this punishment was excessive and
exceptional, and, the same having been suffered by the soldier for three months,
recommended that its unexpired term be at once remitted. Die, Opin. J. A. G., par.
2313, note 1.
The punishment of ball and chain, though sanctioned by the usage of the service,
should, in the opinion of the Judge- Advocate-General, be imposed only in extreme
cases. Its remission has, in general, been recommended by him except in cases of
old offenders, or aggravated crime, where deemed serviceable as a means of obviating
violence or preventing escape. This penalty, like those of shaving the head and
drumming out of the service, has become rare in our Army since the further corporal
punishment of branding or marking has been expressly prohibited by statute. (6)
Ibid., par. 2314.
Military duty is honorable, and to impose it in any form as a punishment must tend
to degrade it, to the prejudice of the best interests of the service. Thus, advised that
a sentence "to do extra duty" for a certain term would properly be disapproved.
So advised of sentences imposing "guard duty" for certain periods. So advised of a
sentence imposing, in connection with a term of confinement in charge of the guard,
the penalty of ' ' sounding all the bugle calls at the post during the same period. ' ' So
advised in regard to a sentence which required a deserter — not for the purpose of
making good the time lost by his desertion, but as a punishment — to serve for an
additional year after the expiration of his term of enlistment, (c) Ibid., par. 2315.
The existing law fixing the term of a soldier's enlistment at three years, a court-
martial can have no power to prolong it by adding to such term an additional period
by way of punishment. Thus a sentence— "to make good, at the expiration of his
term, a period of fifty-seven days during which his services were lost to the United
States by being held in hospital on account of pistol wound received by him while in
the commission of a disorder in violation of the 62d Article of War" — held unauthor-
ized and properly disapproved, Ibid., par. 2316.
A sentence can not legally extend the time of the service of a soldier beyond the
term for which he originally contracted. Ibid.
Discretionary sentences. — In a case where its sentence is discretionary, a court-martial
may impose any punishment that is sanctioned by usage (the "custom of the serv-
ice" referred to in Art. 84), although (in cases of soldiers) the same may not be
included in the list of the more usual punishments contained in the manual for courts-
martial. Ibid., par. 2313. Such discretion on the part of the court-martial, how-
ever, is regulated in its exercise in respect to enlisted men by the orders of the
President imposing limits of punishment which will presently be described.
Under the authority conferred by the act of September 27, 1890, three orders have
been issued by the President prescribing a system of maximum punishments to be
imposed by the several military tribunals upon enlisted men who have been con-
victed of one or more of the offenses therein set forth. The first of these orders was
aThat the provisions of the Vth, Vlth, and VHIth amendments to the Constitution, relating to
criminal proceedings, apply only to the courts, etc., of the United States. See Barron v. Mayor of Bal-
timore, 7 Peters, 243; Ex parte Watkins, Id. 573; Twitchell v. The Commonwealth, 7 Wallace, 326;
Edwards v. Elliott, 21 Id., 557; Walker v. Sauvinet, 2 Otto, 90; Pearson v. Yewdall, 5 Id. 294; 1 Bish. Cr.
L., § 725.
6 The exercise of the power conferred upon the President by the act of September 27, 1890 (26 Stat.
L., 491), to prescribe limits for discretionary punishments has operated to introduce uniformity among
the sentences imposed upon enlisted men by the various military tribunals. See, also, as in accord
with the spirit of this paragraph, G. C. M. O. No. 329, A. G. O. 1864; G. O. 17, Department of the Mis-
souri, 1861; G. O. 56, A. of P., 1862; G. O. No. 3, Department of the Northwest, 1864; G. O. No. 49, Middle
Department, 1864.
cThe duty of a sentinel is important and honorable, and, by Army Regulations, all persons are
required to observe respect toward sentinels. It is deemed improper to impose as a punishment any-
thing presenting the semblance of the performance of the duty of a sentinel. G. C. M. O. 7, War
Dept, 1871.
A sentence imposing solitary confinement in a dark cell was imposed by a general court-martial in
1873; so much of the sentence as required the confinement to be served in a dark cell was remitted
by the Secretary of War as amenable to the objection of being "cruel and unusual punishment."
G. C. M. O. 24, War Dept., 1873.
MILITARY LAWS OF THE UNITED STATES. 727
1834. No officer shall be discharged or dismissed from
the service, except by order of the President, or by sen- ^g6^ War<
tence pf a general court-martial; and in time of peace
no officer shall be dismissed, except in pursuance of the
sentence of a court-martial, or in mitigation thereof.1
Ninety-ninth Article of War.
promulgated in General Orders, No. 21, A. G. 0., of 1891; a second order on the same
subject was embodied in General Orders, No. 16, of 1895; the third, which is now in
force, was embodied in Executive Orders of March 30, 1898, and was promul-
gated to the Army in General Orders, No. 16, A. G. O., of 1898. Under the strict
terms of the statute the orders of the President fixing a schedule of maximum pun-
ishments are operative only in time of peace, and, although courts-martial may, at
their discretion, apply their provisions in determining sentences imposed by them in
time of war, they are under no legal obligation to do so. For the maximum-punish-
ment order now in force, see page 1067, post.
Upon the conviction of an officer or soldier under a charge of a crime, such as man-
slaughter, robbery, larceny, etc., to the prejudice of good order and military discipline,
while the statute of the United States or State, providing for its punishment as a civil
offence, may well be referred to as indicating the nature and extent of the punish-
ment deemed proper for the same by the civil authorities, the punishment to be
imposed by the court-martial should, nevertheless, be measured less by the crimi-
nality of the act as a civil offence than by its gravity as a breach of military discipline.
Thus, where a soldier, having been brought to trial before a civil court for the homi-
cide of another soldier, and inadequately sentenced, was subsequently tried by a
general court-martial for the military offence involved in his act, held that the court
would only properly impose upon him a penalty proportioned to the injury done to
the good order and discipline of the service, and should not, by an excessive pun-
ishment, attempt to compensate for the over-lenient judgment of the civil court.
Dig. Opin. J. A. G., par. 2318.
A sentence of confinement until a certain sum of public money, proved to have been
embezzled by an accused, is paid, is proper for the reason ' ' that without this provision
in a sentence there is no means, in the case of an officer not bonded, of enforcing such
restitution beyond the extent of his pay." G. C. M. O. 27, War Dept., 1872.
Mandatory punishment. — Where the Article of War under which the charge is laid
is mandatory as to the punishment (as in the cases of Arts. 6, 8, 13, 14, 15, 18, 26, 37,
38, 50, 57, 59, 61, 65), and the sentence imposes, in connection with the mandatory
punishment, a further penalty or penalties, this addition to the sentence does not
affect its legality so far as relates to the mandatory punishment; as to this it is valid
and operative, though as to the rest it is a nullity. Dig. Opin. J. A. G., par. 2310.
Where a sentence in excess of the legal limit is divisible, such part as is legitimate
may be approved and executed. Thus where a sentence of an inferior court imposes
a fine or forfeiture beyond the limit of the 83d Article pf War, the sentence may be
approved and executed as to so much as is within the limit. Ibid., par. 2324.
Cumulative punishment. — Where, while an officer or soldier is undergoing a certain
sentence, he is again brought to trial for a military offence, and a further sentence is
adjudged him, imposing a punishment of the same species as that which is being
executed, it is the general rule of the service that the second sentence is to be regarded
as cumulative upon the first, and that its execution is to commence when the execu-
tion of the first is completed. This, whether or not the court, in the second sentence,
may have in terms specified that the second punishment should be additional to the
first; such second punishment being made cumulative by operation of law irrespective
of any direction (and such direction is, in fact, rarely expressed) in the sentence.
Ibid., par. 2317.
1 Courts-martial are empowered and required to adjudge dismissal upon officers of the
Army by the 3d, 6th, 8th, 13th, 14th, 15th, 18th, 26th, 27th, 28th, 38th, 50th, 54th,
59th, 61st and 65th Articles of War, upon conviction of the specific offences therein
described. In Articles 8 and 50 the punishment of dismissal is referred to as "cash-
iering ' ' — a term which has almost passed out of use in our service, and when employed
means no more than dismissal. Ibid., par. 1196.
A legal sentence of dismissal of an officer when finally confirmed by the competent
authority, according to the 106th or 109th Article of War, takes effect upon the
officer on the day on which the confirmation is officially communicated to him, either
by the promulgation of the order of confirmation at his station or other form of
728 MILITARY LAWS OF THE UNITED STATES.
coDwTrdfie for 1835- When an officer is dismissed from the service for
tSS oi sentence! cowardice or fraud, the sentence shall further direct that
100 Art. war. j^e crjme? punishment, name, and place of abode of the
delinquent shall be published in the newspapers in and
about the camp, and in the State from which the offender
came, or where he usually resides; and after such publi-
cation it shall be scandalous for an officer to associate with
him. 1 One hundredth Article of War.
ioipArtsiwar 1836. When a court-martial suspends an officer from
command it may also suspend his pay and emoluments
for the same time, according to the nature of his offense.2
One hundred and first Article of War.
official notice. Thus the date of the actual confirmation is not necessarily — is not
probably in the majority of cases — the date on which the dismissal goes into effect.
The declaration is indeed sometimes added in the order of confirmation, that the
party " ceases thereupon to be an officer of the Army;" but this declaration is imma-
terial and surplusage. It not unfrequently happens — especially in time of war, and
particularly when the officer has, since his trial, been taken prisoner by the enemy —
that a considerable period may elapse before the officer is officially informed of the
confirmation of the sentence and thus becomes, in law and fact, dismissed from the
service. Dig. Opin. J. A. G. par. 1197.
A sentence of dismissal does not attach any legal disability to the person dismissed.
He is not — as is indeed indicated by sec. 1228, Revised Statutes, above cited — dis-
qualified to be newly appointed to the Army, nor is he disqualified to be enlisted as
a soldier, or to hold civil office under the United States. Ibid., par. 1201.
1Though the injunction of the article, as to the direction to be added in the sen-
tence, should of course regularly be complied with, a failure so to comply will not
affect the validity of the punishment of dismissal adjudged by the sentence, (a) The
declaration of the article, that after the publication "it shall be scandalous for an
officer to associate with" the dismissed officer, though it has in a few cases (6) been
incorporated in the sentence, is not intended to be, and should not be, so expressed
by the court. Dig. Opin. J. A. G., par. 302.
The punishment of suspension, as imposed by sentence, is usually in the form of a
suspension from rank, or from command, for a stated term, sometimes accompanied
by a suspension from pay for the same period. Suspension from rank includes sus-
pension from command. Ibid., par. 2408.
In rare cases the form, "to be suspended from the service," has been employed in
the sentence. Such a suspension is equivalent in substance to a suspension from
rank.
A still rarer form, " to be suspended from duty," has been deemed to be practi-
cally equivalent to a sentence of suspension from command, (c) These forms are
now rarely resorted to. Ibid., 732, par. 12.
A sentence, "to be suspended from the Military Academy," in a case of a cadet,
practically severs him from the military service as a cadet during the term of the sus-
pension. It is usually added in such a sentence that, at the end of such term, the
party is to join the next lower class. Ibid., par. 2416.
Like dismissal, suspension takes effect upon and from notice of the approval of the
sentence officially communicated to the officer, either by the promulgation of the
same at his station, or — where he is absent therefrom by authority — by the delivery
to him of a copy of the order of approval or other form of official personal notification
of the fact of the approval. Ibid. , par. 2423.
2 A suspension from rank does not affect the right of the officer to his office. He
retains the same as before, and, as an officer, remains subject as before to military
control as well as to the jurisdiction of a court-martial for any military offence com-
mitted pending the term of suspension, (d) Ibid., par. 2418.
a Note the action taken in the case published in G. C. M. 0. 27, War Dept., 1872.
b As in cases published in G. O. (A. and I. G. O.) of May 13, 1820; do. 168, Dept. of the Missouri, 1865.
c Suspension from duty, as distinguished from suspension from rank, is a recognized punishment
in the naval service. Navy Regulations, Art. 32, sec. 2; Harwood, 134-5. The form, " to be suspended
from rank and duty," occurs in G. C. M. 0. 19, of 1885.
d See v. Opin. Att. Gen., 740; vi. ibid., 715.
MILITARY LAWS OF THE tTfflTED STATES. 729
1837. No person in the military service shall, under the i
sentence of a court-martial, be punished by confinement in tj ^Artu War.
a penitentiary unless the offense of which he may be con-
victed would, by some statute of the United States, or by
some statute of the State, Territory, or District in which
such offense may be committed, or by the common law,
as the same exists in such State, Territory, or District,
subject such convict to such punishment.1 Ninety-seventh
Article of War.
1 This article by necessary implication prohibits the imposition of confinement in
a penitentiary as a punishment for offenses of a purely or exclusively military char-
acter, such, for example, as desertion, absence without leave, or disobedience of
orders, (a) Dig. Opin. J. A. G., par. 288. A sentence of penitentiary confinement in
a case of a purely military offense is wholly unauthorized and should be disapproved.
Effect can not be given to such a sentence by commuting it to confinement in a mili-
tary prison or to some other punishment which would be legal for such offense. Nor
in case of such an offense can a severer penalty, as death, be commuted to confine-
ment in a penitentiary. Ibid, par. 289. Nor can penitentiary confinement be legal-
ized as a punishment for purely military offenses by designating a penitentiary as a
''military prison" and ordering the confinement there of soldiers sentenced to
imprisonment on conviction of such offenses. Ibid, par. 290.
The term "penitentiary," as employed in this article, has reference to civil prisons
only, as the penitentiary of the United States or District of Columbia at Washington,
the public prisons or penitentiaries of the different States, and the penitentiaries
" erected by the United States" (see section 1892, Re vised Statutes) in most of the
Territories. The military prison at Leavenworth is not a penitentiary in the sense
of the article. The term State or State's prison in a sentence is equivalent to peni-
tentiary. Ibid, par. 292.
Where a soldier is sentenced to be confined in a penitentiary the proper reviewing
authority may legally designate for the execution of the punishment any State or
Territorial penitentiary within his command. Where there is no such penitentiary
available for the purpose, or desirable to be resorted to, he will properly submit the
case to the Secretary of War for the designation of a proper penitentiary.
A military prisoner duly sentenced or committed to a penitentiary becomes sub-
ject to the government and rules of the institution. Ibid., par. 293.
An offence charged as "Conduct to the prejudice of good order and military dis-
cipline," which, however, is in fact a larceny, (6) embezzlement, violent crime, or
other offence made punishable with penitentiary confinement by the law of the
State, etc., may legally be visited with this punishment. Ibid., par. 291.
Where the act is charged as a crime under article 62, and charge and specification
taken together show an offence punishable with confinement in a penitentiary by the
law of the locus of the crime, the sentence may legally adjudge such a punishment.
So held — in a case where charge and specification together made out an allegation
of perjury under section 5392, Revised Statutes, (c) Ibid., par. 297.
LIMITS OF PUNISHMENT.
1838. That whenever by any of the Articles of War for
the government of the Army the punishment on convic-
tion of an}1- military offense is left to the discretion of the 26- P- ^91
a See General Orders, No. 4, War Dept., 1867; G. O. 21, Dept. of the Platte, 1866; 21 ibid., 1871; G. O.
44, Eighth A. C., 1862; G. C. M. O., Nos. 34, 3», 43, 46, 72, and 73, Dept. of the Missouri, 1870.
b In a case of larceny the court should inform itself as to whether the value of the property stolen be
not too small to permit of penitentiary confinement for the offence under the local law See G. O.
44, Eighth Army Corps, 1862; G. C. M. O. 63, Dept. of the Platte, 1872.
c Held that penitentiary confinement could not legally be adjudged upon a conviction of a violation
of the 21st article, alleged in the specification to have consisted in the lifting up of a weapon (a pistol)
against a commanding officer and discharging it at him with intent to kill. By charging the offence
under this article the Government elected to treat it as a purely military offence subject only to a
military punishment. So, upon a conviction of joining in a mutiny, in violation of article 22', held
that a sentence of confinement in a penitentiary would not be legal although the mutiny involved a
homicide,, set forth in the specification as an incidental aggravating circumstance. To have war-
ranted such a punishment in either of these cases the Government should have treated the act as a
"crime," and charged and brought it to trial as such, under article 62. Dig. Opin. J. A. G., par. 296,
730 MILITARY LAWS OF THE UNITED STATES.
court-martial the punishment therefor shall not, in time
of peace, be in excess of a limit which the President may
prescribe.1 Act of September 27, 1890 (26 Stat. Z., 491).
1 Under the authority conferred by this statute, four Executive orders have been
issued prescribing limits of punishment for offenses to which specific penalties are
not attached in the Articles of War. See General Order, No. 42, A. G. 0. ot 1901,
which contains the Executive order of March 12, 1901, which is now in force. For
a copy of the Executive order of March 12, 1901, see APPENDIX, page 1067, and MAN-
UAL FOR COURTS-MARTIAL (edition of March 16, 1901), pp. 48-57.
Disciplinary punishments. — The several Articles of War, and other statutes of simi-
lar character, conferring jurisdiction upon certain military tribunals for the triai and
punishment of military offenses, operate to deprive commanding and other officers
of the power to inflict punishment upon officers and enlisted men under their com-
mand save in accordance with the methods prescribed in the statutes above indicated.
A military punishment can legally be imposed only by sentence of court-martial
after a regular trial and conviction. Such a punishment can not be imposed by a
mere order.
We have in our military law no system of disciplinary punishments. Except in a
few cases, unimportant in themselves or of rare occurrence in practice (see arts. 25,
52, 53, and 54), our code recognizes no punishments other than such as may be
adjudged upon trial and conviction by a military court. In the General Orders pun-
ishments inflicted merely at the will of military commanders have been repeatedly
condemned as illegal and forbidden in practice. [See G. 0. 81 (A. G. O.), 1822; do.
53, Hdqrs. of Army, 1842; do. 2, 4, War Dept., 1843; do. 39, Hdqrs. of Army, 1845;
do. 645, War Dept., 1865; do. 49, Northern Dept., 1864; do. 22, Dept. of the Platte,
1867; do. 44, id., 1871; do. 63, Dept. of Dakota, 1868; do. 106, id., 1871; do. 40, Dept.
of the East, 1868; G. C. M. 0. 112, id., 1870; do. 90, id., 1871; G. O. 14, Dept. of the
South, 1869; do. 1, 23, 93, id., 1873; do. 9, Mil. Div. of the Atlantic, 1869; do. 31, id.,
1873; do. 23, Dept. of the Lakes, 1870; G. C. M. 0. 50, Dept. of the Missouri, 1871.]
Officers who have resorted to such punishments have been repeatedly brought to trial
and sentenced. [SeeG. O. (A. and I. G. O.), of June 30, 1821; do. 8 (A. G. O.), 1826;
do. 28, id., 1829; do. 64, id., 1832; do. 2, 6, 68, War Dept, 1843; do. 39, Hdqrs. of
Army, 1845; do. 53, Dept. of Va. and No. Ca., 1864; do. 22, Dept. of the Platte, 1867;
do. 9, Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; G. C. M. O. 50,
Dept. of the Missouri, 1871.] And enlisted men, tried and sentenced for insubordi-
nate conduct, where such conduct has been induced or aggravated by illegal corporal
punishments inflicted upon them by superiors, have commonly had their sentences
remitted or mitigated, or altogether disapproved. [See G. 0. 49, 76, Northern Dept.,
1864; do. 40, Dept. of the East, 1868; G. C. M. 0. 90, id., 1871; G. O. 63, Dept. of
Dakota, 1868; do. 76, id., 1871; G. C. M. O. 45, id., 1880; do. 93, Dept. of the South,
1873.] In proper cases, of course, as where violence is employed, escape attempted,
etc., by soldiers who are mutinous or disorderly, or in arrest under charges, force may
be used against them according to the necessities of the case. [See also G. O. 53,
Hdqrs. of Army, 1842; do. 2, War Dept, 1843; G. C. M. O. 47, Hdqrs. of Army,
1877; G. O. 53, Dept. of Va. and No. Ca., 1864; do. 40, Dept of the East, 1868; G. C.
M. O. 112, id., 1870; do. 90, id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 106,
Dept. of Dakota, 1871; do. 93, Dept, of the South, 1873; do. 31, Mil. Div. of the
Atlantic, 1873; G. C. M. O. 37, Dept. of Texas, 1880.] This, however, is prevention
and restraint, not punishment; the authority to use the needful force in such cases will
not justify the superior, when the offender is repressed or apprehended, in subject-
ing him to arbitrary punitory treatment.
Discretion regarding trial by summary court. — Paragraph 7, Circular No. 13, Adjutant-
General's Office, December 5, 1891, reads as follows:
"The fact that the number of trials by inferior court-martial has greatly increased
since the establishment of the summary court indicates that officers of the Army
have the impression' that under the present system they must bring every dereliction
of duty before a court for trial, and that they are allowed no discretion in the mat-
ter. This is a mistake. Their discretion is the same now as it was under the garri-
son court system, and they are not obliged to bring cases before the summary court
which they believe ought to be disposed of with an admonition or the withholding
of privileges or indulgences. The extent of the exercise of this discretion, within
these limits, is subject to the control of the commanding officer."
In accordance with the spirit of the foregoing, company commanders are author-
ized, subject to the control of the commanding officer of the post, to dispose of cases
of derelictions of duty in their commands which would be within the jurisdiction of
MILITARY LAWS OF THE UNITED STATES. 731
THE RECORD.
1839. Every judge-advocate, or person acting as such, anVdFsposltVo°i?
at any general court-martial shall, with as much expedi- M*tkEMr«r.
tion as the opportunity of time and distance of place may
admit, forward the original proceedings and sentence of
such court to the Judge-Advocate-General of the Army,
in whose office they shall be carefully preserved.1
1840. Every party tried by a general court-martial shall, to^acopyentitled
upon demand thereof, made by himself or by any person
in his behalf, be entitled to a copy of the proceedings and
sentence of such court. One hundred and fourteenth
Article of War.
1841. The judge-advocate will transmit the proceedings R^o?dSiti°n of
without delay to the officer having authority to confirm the 19oiar< 1057> A' R"
sentence,2 who will state at the end of the proceedings in
inferior courts-martial, by requiring extra tours of fatigue, unless the soldier con-
cerned demands a trial. This right to demand a trial must be made known to him.
Circulars, A. G. O., 1898.
1 The legal record of a court-martial is that record which is finally approved and
adopted by the court as a body and authenticated by its president and judge-
advocate. The court as a whole is responsible for the record, and the instrument
which it approves as such is its record, however the same may have been made up.
It is immaterial to the sufficiency of a record whether the same was kept or written
by the judge-advocate or a clerk. So where a clerk or reporter, appointed and
sworn to keep the record, did not act, but the record was prepared by the judge-
advocate or some other person employed by him to assist him, held that this circum-
stance did not affect the validity of" the record as finally approved by the court.
Dig. Opin. J. A. G., par. 2140.
For rules respecting the contents and preparation of the records of general courts-
martial see Ibid., paragraphs 2136-2140:
Exhibits and appendixes. — It is not necessary to encumber a record by spreading
upon its documents, or other writing or matter, excluded by the court. But it should
specify the character of the writing and the grounds upon which it'wTas ruled out.
Papers, books, certified copies of documents authorized by law to be used in evi-
dence, and other instruments of documentary evidence which are submitted to the
court and read in evidence during the progress of the trial, are noted in the record as
"read to the court and appended, marked A, B, C," etc. When it is proposed to sub-
mit documentary evidence, its nature and character are explained to the court by the
party in whose behalf it is submitted, and these statements, together with any objec-
tions to its admission which may be made by the opposite party, and the decision of
the court in respect to its admission, are fully set forth in the record.
Loss or destruction of record. — Where the proceedings of a court-martial have regu-
larly terminated, and the sentence has been confirmed and ordered to be executed
by the proper and final reviewing authority, the fact that the record has since been
lost does not impair or affect the judgment of the court, and constitutes no legal
obstacle to the enforcement of the penalty. But where the record of the trial of a
soldier who had pleaded not guilty, and in whose case considerable evidence had
been introduced, was, by a casualty of war, lost before any action had been taken upon
the sentence by the reviewing officer, held that, unless the court could be reconvened
and a new record could be made out from extant original notes, the proceedings, inas-
much as they could not be intelligently reviewed or formally approved, should prop-
erly be considered as inoperative and the sentence of no effect. Ibid., par. 2139.
Held that the destruction, by fire or other casualty, of the record of the trial, con-
viction, and sentence of a deserter, before action could be taken upon the same, was
of similar effect in law to an acquittal, and relieved the deserter from the forfeiture
of pay due at the date of his desertion. Ibid.
2The 104th Article of War contains the requirement that uno sentence of a court-
martial shall be carried into execution until the same shall have been approved by
732 MILITAEY LAWS OF THE UNITED STATES.
each case his decision and orders. Par. 1057, Army Regu-
lations.
REVISION PROCEEDINGS.
ce?dSgs0n rr°" 1842- When the record of a court exhibits error in prep-
i9oiar* 1059> A' RM ^ration, or seemingly erroneus conclusions, the reviewing
authority may reconvene the court for a reconsideration
of its action, pointing out defects.1 Should the court con-
the officer ordering the court, or by the officer commanding for the time being."
The record should therefore be forwarded by the judge-advocate to the convening
officer, or to his successor in command, who, under the law, is authorized, by his
approval of the findings and sentence, to make the latter operative. The proceed-
ings are forwarded through the same channel, even where the sentence imposed is
one which can only be made legally operative by the approval of superior authority;
and it is the duty of the original reviewing officer to subject such proceedings to the
same examination and review as would be applied to cases in which his approval
and orders are final and conclusive.
Disposition of record. — Where the court was convened by a military officer — as, in
a case of a general court, the general of the army or a department or army commander —
it is the duty of the judge-advocate, upon the completion of the record, to transmit
the same to such officer (or his successor in his command) for the proper action.
Where the court was convened by the President, it is the duty of the judge-advocate
to transmit the completed proceedings directly to the Judge- Advocate-General, (a) in
order that, as the staff officer of the President, he may exercise the revisory function
reposed in him by section 1199, Revised Statutes. (6)
1 Revision proceedings. — Where the record of a trial, as forwarded to the reviewing
authority for his action, is deemed by him to exhibit some error, omission, or other
defect in the proceedings capable of being supplied or remedied by the court; as, for
example, an inadequate, excessive, illegal, or irregular sentence, or a finding not
authorized by the evidence; or an omission of some material matter — as a failure to
prefix to the record a copy of the convening order, or to authenticate the proceed-
ings by the signatures of the President or Judge- Advocate, or to enter the proper
statement as to the members present, or to recite as to the offering to the accused of
an opportunity to object to the same, or as to the qualifying of the court by the pre-
scribed oaths, or to fully record the plea, finding, or sentence; or some mere clerical
error in a matter of form — the court may and in general properly will be reconvened
by the order of the reviewing officer (the convening authority or his successor in the
command), for the purpose of correcting the record in the faulty particular, provided
a correction be practicable. In a case of an omission the object of course is that the
record may be made to conform with the fact. If the fact is that the proceeding,
apparently merely omitted to be recorded, was actually not had, the proposed correc-
tion can not of course be made. There is no limit to the number of times that a
court may be reconvened for a revision of its proceedings. It is not often, however,
reassembled a second time where it declines on the first occasion to make the correc-
tion desired, (c) Dig. Opin. J. A. G., par. 2249.
The order reassembling the court will properly indicate the particular or particu-
lars as to which a revision or correction is desired, or refer to papers accompanying
it in which the supposed omission or other defect is set forth. Whether to make or
not the proposed correction will be in the discretion of the court. The reviewing
authority can not of course compel and would scarcely be authorized to command
the court to make it. Ibid., par. 2250.
A correction can be made only by a legal court. At least five, therefore, of the
members of the court who acted upon the trial must be present. That there are
fewer members at the reassembling than at the trial is immaterial, provided five are
a See G. O. 72, War Dept., 1873; do. 39, Hdqrs. of Army, 1877.
b It may here be noted that the One hundred and thirteenth Article of War, the only statute relat-
ing to the forwarding, by judge-advocates, of the proceedings of general courts, is incomplete, and
not in harmony with the provisions of arts. 104 and 109. The practice on the subject— as determined
by par. 1057, Army Regulations, and the supplementary orders indicated in the foregoing note— repre-
sents quite accurately the existing law, and is as stated in the text.
cln the case of Judge- Advocate-General Swaim, tried by court-martial in 1885, the record was twice
returned for revision. G. C. M. O., No. 19, War Dept., 1885.
MILITARY LAWS OF THE UNITED STATES. 733
cur in the views submitted, it will proceed by amendment
to correct its errors, and may modify or completely change
its findings. A reopening of the case, by calling or recall-
ing witnesses, is illegal. Par. 1059, Army Regulations,
1901.
present. The judge-advocate should be present. If the court closes, however, he
should withdraw. Dig. Opin. J. A. G., par. 2251.
It is not in general necessary or desirable that the accused be present at a revision.
Where, however, any possible injustice may result from his absence, he should be
required or permitted to be present, and with counsel if preferred. Thus where the
defect to be corrected consists in an omission properly to set forth a special plea
made or objection taken by the accused, it may be desirable that he should be pres-
ent in order that he may be heard as to the proper form of the proposed correction.
Where the error is clerical merely, or, though relating to a material particular, con-
sists in the omission of a formal statement only, the presence of the accused is not in
general called for. Ibid., par. 2252.
It is now settled in our law that a court-martial is not empowered at this proceed-
ing to take or receive testimony. (a) Ibid., par. 2253.
The amendment can only be made by the court when duly reconvened for the
purpose, and when made must be the act of the court as such. A correction made by
the president or other member, or by the judge-advocate independently of the
court, and by means of an erasure or interlineation or otherwise, is unauthorized
and a grave irregularity. The correction must be wholly made and recorded in and
by the formal proceedings upon the revision. The record of the correction as thus
made will refer of course to the page or part of the record of the trial in which the
omission or defect occurs; but this part of the record must be left precisely as it
stands. The court is no more authorized to correct the same by erasure or interline-
ation on the page, or by the substitution for the defective portion of a rewritten cor-
rected statement, than wduld be the judge-advocate or a member. (6) Ibid., par.
2254.
Where the court has been dissolved, or, by reason of any casualty or exigency of
the service, can not practically be reconvened, there can of course be no correction
of its proceedings. Ibid., par' 2257.
The procedure here contemplated is of course quite distinct from the ordinary revi-
sion and correction of its proceedings by a court-martial from day to day during a
trial and before the record is completed. Ibid., par. 2258.
a See G. O. 47, Hdqrs. of Army, 1879.
b A record canliot legally be corrected by an interlineation by the judge-advocate — as by the words
"at hard labor" interlined in the sentence. Nor can it legally be corrected by a statement on the
margin of a page, signed by the judge-advocate. Dig. Opin. J. A. Gen., 651, par. 15.
In the case of Private Gundlach, of the Hospital Corps, the sentence was set aside by the order of the
President. "The record of the trial failed to show that the members of the court and judge-advocate
were sworn, and on being returned for necessary action the court was not reconvened, as contemplated
by paragraph 2, page 56, Court-Martial Manual, 1898, but the judge-advocate interlined a statement
in the record that the members of the court and the judge-advocate were duly sworn. This action
was unauthorized and invalid. A defective record returned for correction can only be amended to
conform to the actual facts and by the court itself on revision when duly reconvened for the purpose."
S. O., 99, H. Q. A. 1900. In the case of a cadet tried by general court-martial at the Military Academy
in 1844 a verdict of acquittal was reached by the full court composed of seven members. On the
following day, six members only being present, the acquittal reached at the previous day's session
was revoked and a finding of guilty was reached and entered upon the record. In respect to this
j.ction on the part of the court it Avas remarked by the Secretary of War that "however it may be
asserted that the usage and laws of courts-martial may sanction the right of the court to annul and
entirely change their positive decision at any time before their final adjournment, yet it is a right
wnich should be cautiously exercised, and only on obvious and extraordinary occasions. In the
I resent case a full court acquitted the prisoner, and upon the next day a mutilated court — one mem-
ber being absent — undertake to rescind the judgment of the previous day, and to pronounce the
ft reused guilty and sentence him to punishment. It is not necessary to go into reasons and examples
to show the danger and injustice which might result from a portion of the court upon the occasion
of an accidental absence of one or more of its members reversing their judgment and changing
innocence to guilt. To justify such a reversal the court should be as full and constituted precisely
as it was when the judgment was pronounced. In consequence of this irregularity the proceedings
of the court are disapproved and the accused ordered to be released from arrest and restored to 'duty.
G. O. No. 40, War Dept., 1844.
734 MILITAEY LAWS OF THE UNITED STATES.
THE REVIEWING AUTHORITY.
Par.
1847. Confirmation of death sentence.
1848. The same, dismissal of officer.
1849. The same, time of peace.
1850. Suspension of sentence.
Par.
1843. Approval of sentence.
1844. The same, time of war.
1845. The same, confirmation.
1846. The same, general officers.
1843. No sentence of a court-martialshall be carried into
execution until the same shall have been approved by the court °rde'ring
officer ordering the court,1 or by the officer commanding 104 Art> War-
for the time being.2 One hundred and f mirth Article of
War.
1 This term is employed in military parlance to designate the officer whose prov-
ince and duty it is to take action upon — approve or disapprove, etc. — the proceedings
of a court-martial after the same are terminated, and when the record is transmitted
to him for such action. This officer is ordinarily the commander who has convened
the court. In his absence, however, or where the command has been otherwise
changed, his successor in command, or, in the language of articles 104 and 109, "the
officer commanding for the time being," is invested (by those articles) with the same
authority to pass upon the proceedings and order the execution 01 the sentence in a
case of conviction. Dig. Opin. J. A. G., par. 2227.
While approval gives life and operation to proceedings or sentence, disapproval,
on the other hand, quite nullifies the same. A disapproval of the proceedings of a
court-martial by the legal reviewing authority is not a mere expression of disappro-
bation, but a final, determinate act, putting an end to such proceedings in the par-
ticular case, and rendering them entirely nugatory and inoperative; and the legal
effect of a disapproval is the same whether or not the officer disapproving is author-
ized finally to confirm the sentence. But to be thus operative a disapproval should
be express. As frequently remarked in the opinions of the Judge- Advocate General,
the mere absence of an approval is not a disapproval, nor can a mere reference of the
proceedings to a superior without words of approval operate as a disapproval of the
proceedings or sentence, (a) The effect of the disapproval, wholly, of a conviction
or sentence is not merely to annul the same as such, but also to prevent the accruing
of any disability, forfeiture, etc., which would have been incidental upon an approval.
(6) A disapproval of a conviction of a particular offense also operates to nullify the
conviction of any lesser included offense, involved in the conviction of the specific
offense charged.
Where the original reviewing officer disapproves a sentence, to the execution of
which the confirmation of superior authority is made requisite by the code, as where
(in time of peace) the department commander who has convened the court, in the
case of an officer, disapproves a sentence of dismissal adjudged thereby, the sentence
being nullified in law, there remains nothing for the superior authority to act upon,
and to transmit the proceedings to him for action will be improper and unauthorized.
A reviewing officer can not disapprove a sentence and then proceed to mitigate or
commute the punishment, since upon the disapproval there is nothing left in the
case upon which any such action can be based.
It is quite immaterial to the legal effect of a disapproval whether any reasons are
given therefor, or whether the reasons given are well founded in fact or sufficient in
law. Ibid., par. 2229.
2 The " officer commanding for the time being," indicated in this article, is an officer
who has succeeded to the command of the officer who convened the court, as where
the latter has been regularly relieved and another officer assigned to the command,
or where the command of the convening officer has been discontinued and merged
in a larger or other command, at some time before the proceedings of the court are
completed and require to be acted upon. Thus where, under the circumstances, a
a See XVI Opin. Att. Gen., 312, where it is remarked that it is not a legal disapproval of a conviction
or sentence for the original reviewing officer, in forwarding the proceedings for the action of superior
authority, to indorse upon the same an opinion to the effect that the finding is not sustained by the
evidence.
6 A disapproval of a sentence by the proper review,ing authority is "tantamount to an acquittal by
the court." XIII Opin. Att. Gen., 460.
MILITARY LAWS OF THE UNITED STATES. 735
1844. No sentence of a court-martial appointed by the
commander of a division or of a separate brigade of troops, com0ma°nderf ade
directing the dismissal of an officer, shall be carried into „ Dec-24, i86i, c.
O, V. L£, p. OOU.
execution until it shall have been confirmed by the general 107 Art- War-
commanding the army in the field to which the division or
brigade belongs . One hundred and seventh Article of War.
separate brigade has ceased to exist as a distinctive organization and been merged in
a division, or a division has been similarly merged in an army or department, the
commander of the division in the one case, and of the army or department in the
other, is "the officer commanding for the time being" in the sense of the article.
So where, before the proceedings of a garrison court convened by a post commander
were completed, the post command had ceased to exist and the command become
distributed in the department, held that the department commander, as the legal
successor of the post commander, was the proper authority to approve the sentence
under this article. Dig. Opin. J. A. G., par. 326.
Where a department command was discontinued, without being transferred to or
included in any other specific command, held that the general in command of the
army was "the officer commanding for the time being," and the proper authority to
act, under this article and the one hundred and ninth, upon the proceedings and sen-
tence of a court which had been ordered by the department commander, but whose
judgment had not been completed at the time of the discontinuance of the command.
Ibid., par. 333.
The "officer commanding for the time being" must, to legally act, have the neces-
sary qualifications. Thus, where the sentence is one of a general court-martial, this
officer must have the same rank and status as the convening officer must have had
under the seventy-second article, i. e. , he must be either a general officer commanding
the army, division, or department, or a colonel commanding the department. Ibid.,
par. 335.
In cases, however, of sentences of dismissal and of death, imposed in time of peace,
and of some death sentences adjudged in time of war, as also of all sentences, "re-
specting general officers," while the convening officer (or his successor) is the
original reviewing authority, with the same power to approve or disapprove as in
other cases, yet inasmuch as it is prescribed by articles 105, 106, 108, and 109 that the
sentence shall not be executed without the confirmation of the President, the latter
becomes in these cases the final reviewing officer, when, the sentence having been
approved by the commander (for, if disapproved by him, there is nothing left to be
acted upon by the superior), the record is transmitted to him for his action. A sim-
ilar division of the reviewing function exists in cases in which sentences are approved,
but the execution of the samo is suspended, and the question of their execution
referred to the President, under article 111. The same function is also shared
between inferior and superior commanders, under article 107, in cases in which sen-
tences are imposed by division or separate brigade courts. So, under article 110, in
cases of sentences adjudged by field officers' courts in time of war.
Where a general court-martial is convened directly by the President, as com-
mander in chief, he is, of course, both the original and final reviewing authority.
Ibid. See, also, in connection with the review of proceedings, the MANUAL FOB
COURTS-MARTIAL.
The reviewing authority should properly authenticate the action taken by him in
any case by subscribing in his own hand (adding his rank and command, as indi-
cating his legal authority to act) the official statement of the same as written in or
upon the record. Impressing the signature by means of a stamp is not favored.
Ibid., par. 2233.
In acting upon the proceedings of a court-martial, the legal reviewing officer acts
partly in a judicial and partly in a ministerial capacity. He "decides" and
"orders," and the due exercise of his proper functions can not be revised by superior
military authority. Thus held that a reviewing officer who had duly acted upon a
sentence and promulgated his action in orders could not be required by a higher
commander, or by the Secretary of War, to revoke such action. If the sentence be
deemed unwarranted or excessive, relief may be extended through the power of
pardon or remission. Ibid., par. 2243.
This article is properly to be complied with by an approval of the sentence (where
the same is approved in fact) by "the officer ordering the court," etc., although— as
in a case of a sentence of dismissal in time of peace — he may not be empowered finally
736 MILITARY LAWS OF THE UNITED STATES.
1845. All sentences of a court-martial may be confirmed
court °rdering and carried into execution by the officer ordering the court,
109 Art. tfar. or ^y fa^ officer commanding for the time being, where
confirmation by the President, or by the commanding gen-
eral in the field, or commander of the department, is not
req uired by these articles. One hundred and ninth Article
of War.
to confirm and give effect to the sentence. His approval is required as showing that
he does not, as he is authorized to do, disapprove. Dig. Opin. J. A. G., par 323.
The approval of the sentence indicated by this article should properly be of a
formal character. An indorsement, signed by the commander, of the single word
"approved" — a f orm not unfrequently employed during the late war — though strictly
sufficient in law, is irregular and objectionable. So, held that a mere statement,
written in or upon the proceedings, in transmitting them to the President, that the
record was "forwarded" for the action of superior authority, was insufficient as not
implying the requisite approval according to the article. And similarly held of a
mere recommendation that the proceedings be approved by such authority. Ibid.,
par. 324.
A military commander can not, of course, delegate to an inferior or other officer hii
function as reviewing authority of proceedings or sentence of a court-martial, as con-
ferred by the one hundred and fourth or one hundred and ninth article of war or
other statute. Nor can he, regularly, authorize a staff or other officer to \vrite and
subscribe for him the action, by way of approval, disapproval, etc., which he has
decided to take upon such proceedings. An approval purporting to be subscribed
by the commander, "by" his staff judge-advocate or assistant adjutant-general,
would be open to question and quite irregular, as would also be any action subscribed
by such an officer purporting to be taken ' ' in the absence and by the direction of ' '
the commander. Ibid., par. 2234.
Action taken by a reviewing officer upon the proceedings and sentence of a court-
martial may be recalled and modified before it is published, and the party to be
affected is duly notified of the same. After such notice the action is beyond recall.
The power of remission, indeed, may be exercised so long as any part of the punish-
ment imposed remains unexecuted. But when the final approval of the sentence
(or other action taken) has been once officially communicated to the accused, the
function and authority of the reviewing authority as such over and respecting the
same is exhausted and can not be revived. An approval can not then be substituted
for a disapproval, or vice versa. Ibid., par. 2235.
A disapproval of a finding by the proper reviewing authority has the same legal
effect as an acquittal, and the soldier can not be made to suffer any of the legal con-
sequences of a conviction. Ibid., 675, par. 9.
Held a good ground for the disapproval of a sentence that the court denied the
request of the accused to have summoned a clearly material and important witness,
whose testimony would not have been merely cumulative. Ibid., par. 2238.
It is beyond the power of the reviewing officer to change, by his own action, a find-
ing. Thus where, in a case of conviction of desertion, the reviewing authority
approved "so much only of the finding of guilty of desertion as convicted the accused
of absence without leave," held that he thus substituted a finding of his own for that
of the court, and that his action was unauthorized. Ibid., par. 2239.
It is within the authority of a department commander, as reviewing officer, in a
case in which a soldier of his command has been sentenced to confinement in a peni-
tentiary, to designate a particular penitentiary within such command as the place of
confinement. Ibid., par. 2240.
It is an established principle that when the final action of the reviewing officer
has been published in orders to the command and notified to the accused, his power
of approval and disapproval in the case is exhausted, and his action can not be recalled
or modified. Where a department commander applied to the War Department for
the return of the proceedings in a case in order that he might modify his action
thereon, held that as the same had been formally promulgated in orders and had duly
taken effect, the power of the reviewing officer over the case was exhausted, and the
application could not legally be complied with. Ibid., par. 2236.
But where, after the reviewing commander had approved a sentence in general
orders, and the court had been dissolved, it was discovered that there was a fatal
defect in the proceedings in that they did not show that the court or judge-advocate
had been sworn in the case, held that the commander would properly issue a supple-
MILITARY LAWS OF THE UNITED STATES. 737
1846. No sentence of a court-martial, either in time of
peace or in time of war, respecting a general officer,
be carried into execution until it shall have been con-
firmed by the President. One hundred and eighth Article
of War.
1847. No sentence of a court-martial inflicting the pun-
ishment of death shall be carried into execution until it tenj|- Art War
shall have been confirmed by the President; except in the20^y517^!'
cases of persons convicted, in time of war, as spies, muti- ^ *£|J *> ;11|6|;
neers, deserters, or murderers, and in the cases of guerrilla c^i
marauders, convicted, in time of war, of robbery, burglary, 356-
arson, rape, assault with intent to commit rape, or of viola-
tion of the laws and customs of war; and in suchexcepted
cases the sentence of death may be carried into execution
upon confirmation by the commanding general in the field,
or the commander of the department, as the case may be.
One hundred and fifth Article of War.
1848. In time of peace no sentence of a court-martial of
directing the dismissal of an officer shall be carried into Jfejg1 in time
execution until it shall have been confirmed by the Presi- f06 Art* War>
dent. l One hundred and sixth Article of War.
mental order declaring the proceedings a nullity and the original order inoperative
and withdrawn on account of the defect, (a) Dig. Opin. J. A. G., par. 2242.
Where the convening commander dissolves a court pending a trial, his power as to
that court is exhausted, and he can not revive it as such. He may reconvene the
same members as a court-martial, but it will be another and distinct tribunal. Ibid. ,
676, par. 16.
1 The article does not require that the confirmation of the sentence shall be signed
by the President, nor does it prescribe any form in which the confirmation shall be
declared. Held, therefore, that a written approval of a sentence of dismissal authen-
ticated by the signature of the Secretary of War, or expressed to be by his order,
was a sufficient confirmation within the article; the case being deemed to be gov-
erned by the well-established principle that where, to give effect to an Executive
proceeding, the personal signature of the President is not made essential by law,
that of the head of the Department to which the subject belongs shall be sufficient
for the purpose; the assent of the President to his order or direction being presumed,
and his act being deemed in law the act of the President whom he represents, (b)
Ibid., par. 337.
The word "approved," employed by the President in passing upon a sentence of
dismissal, held to be substantially equivalent to "confirmed," the word used in the
a See G. C. M. O., 23, Dept. Dakota, 1888, setting aside void sentences and restoring to duty the
prisoners, both of whom were serving confinement, and had been under the terms of the void sen-
tences dishonorably discharged. See also G. C. M. 0., 20, Dept. Cal., 1890, where a void sentence was
set aside, the dishonorable discharge " canceled" and the prisoner restored to duty.
If, however, the court has not been dissolved it may be reconvened to amend its record to conform
to the actual facts; that is, to make it speak the truth. See par. 19, S. O., 99, A. G. O., 1900, in which
the following is promulgated: "By direction of the President, the sentence in the case * * *
published in paragraph 1, Special Orders, No. 214, Headquarters Separate Brigade, Provost Guard,
Manila, Philippine Islands, November 8, 1899, is set aside. The record of the trial failed to show that
the members of the court and judge-advocate were sworn, and on being returned [by the War
Department] for necessary action the court was not reconvened, as contemplated by paragraph 2,
page 56, Court-Martial Manual, 1898, but the judge-advocate interlined a statement in the record that
the members of the court and judge-advocate were duly sworn. This action was unauthorized and
invalid. A defective record returned for correction can only be amended to conform to the actual
facts and by the court itself on revision when duly reconvened for the purpose."
b This view has been sustained by an opinion of the Attorney-General of June 6, 1877 (XV Opins., 290),
and by a report of the Judiciary Committee of the Senate of March 3, 1879, Report No. 868, Forty-fifth
Congress, thud session. From this report, indeed, two members of the committee dissented in a sub-
sequent report of April 7, 1879, Mis. Doc. No. 21, Forty-sixth Congress, first session.
22924—08 - 47
738 MILITARY LAWS OF THE UNITED STATES.
se8n?encfe8 of 1849. Any officer who has authority to carry into execu-
mlssai pending ti°n ^be sentence of death, or of dismissal of an officer,
Executive ac-may SUSpend the same until the pleasure of the President
111 Art. war. snan jje known; and in such case he shall immediately
transmit to the President a copy of the order of suspension,
together with a copy of the proceedings of the court.1
One hundred and eleventh Article of War.
mitigation'ol 1850. Every officer who is authorized to order a general
P^iy1i7ei862 c court-martial shall have power to pardon or mitigate any
201, s. 7, v. 12, p. punishment adjudged by it, except the punishment of death
112 Art. war. or of <Jigmissal of an officer. Every officer commanding a
regiment or garrison in which a regimental or garrison
court-martial may be held, shall have power to pardon or
mitigate any punishment which such court may adjudge.2
One hundred and twelfth Article of War.
article. In practice the two words are used indifferently in this connection. Dig.
Opin. J. A. G., par. 386.
This subject has been more recently considered by the United States Supreme
Court in a succession of cases (Runkle v. U. S., 122 U. S., 543; U. S. v. Page, 137
U. S., 673; U. S. v. Fletcher, 148 U. S., 84), the effect of which is that a statement of
approval of a sentence of dismissal, authenticated by the Secretary of War, is legally
sufficient, provided that it appear by clear presumption therefrom that the proceed-
ings have actually been submitted to the President.
In an opinion of the Attorney-General of April 1, 1879 (XVIOpins., 298), it was held
that a confirmation of a sentence of dismissal of an officer, though irregularly and
unduly authenticated, would be ratified by an appointment by the President of
another officer to fill the supposed vacancy, and that the appointment thus made
would be valid and operative.
!An officer suspending the execution of a sentence for the action of the President
under this article should first formally approve the same. Simply to forward the
proceedings, stating that the sentence has been suspended, is incomplete and irregu-
lar. If the commander disapproves the sentence, he can not, of course, suspend and
transmit under this article, since there remains nothing for the President to act upon.
Ibid., par. 339.
Where a case is submitted to the President for his action under this article, he may
approve or disapprove the sentence in whole or in part, and, if approving, may exer-
cise the power of remission or mitigation. Ibid., par. 340.
2 The reviewing authority, in approving the punishment adjudged by the court and
ordering its enforcement, is authorized, if he deems it too severe, to graduate it to
the proper measure by reducing it in quantity or quality, without changing its spe-
cies; this is mitigation. Imprisonment, fine, forfeiture of pay, and suspension are
punishments capable of mitigation. As an instance of a mitigation both in quantity
and quality, held that a sentence of imprisonment for three years in a penitentiary
was mitigable to an imprisonment for two years in a military'prison.(a) Ibid., par.
345.
Held that a reviewing officer other than the President was not empowered by this
article to commute a punishment; that the "pardon" here specified was remission,
which, unlike the pardoning power vested in the President, did not include commu-
tation or conditional pardon. So. held that a reviewing commander was not author-
ized to commute the punishment of dishonorable discharge, and that, as such pun-
a The power to remit or commute sentences of death and dismissal is reserved by this article for the
President. A military commander can not exercise such power, even where^ in time of war, he is
authorized to approve and execute the sentence. He may then, however, if he thinks that the sen-
tence should be remitted or commuted, suspend its execution for the action of the President (with a
recommendation to clemency) under the preceding article. VI Opin. Att. Gen., 124, 126.
See opinion of Judge- Advocate-General published in G. 0., 71, War Department, 1875; I Opin. Att. Gen.,
327; 4 ibidM 444. (It may be noted that these early opinions of the Attorney-General inaccurately
describe the substitution of a lesser punishment for a death sentence as a mitigation, the proceeding
being properly commutation.)
Par.
MILITARY LAWS OF THE UNITED STATES. 739
THE INFERIOR COURTS-MARTIAL.
Par.
1854. Power of inferior courts to punish.
1855-1861. The summary court.
1851, 1852. The regimental court-martial.
1853. The garrison court-martial.
1851. Every officer commanding a regiment or
shall, subject to the provisions of article eighty, be compe-
tent to appoint, for his own regiment or corps, courts- ™< s- 7- v- 12> P-
martial, consisting of three officers, to try offenses not
capital.2 Eighty-first Article of War.
ishment was not susceptible of mitigation, it could not legally be reduced under this
article. Dig. Opin. J. A. G., par. 347.
The substitution of the punishment of confinement for that of dishonorable dis-
charge, imposed by sentence of court-martial, would not, of course, be authorized by
way of mitigation (which can not change the nature of the punishment), but may be
affected by a commutation of the sentence by the President, accepted by the soldier.
See the action of the President in the case of Private Hayes, Fifth Artillery, in G. C.
M. O., 58, of 1888. Ibid., par. 348.
The order prescribing maximum punishments was not intended to and does not
affect the established principle that the reviewing authority, in the exercise of his
power of mitigation, can not change the kind of punishment. The power of substi-
tution which may be exercised by the court under the order has no relation to the
power of the reviewing officer. Thus held that the substitution by the reviewing officer
of confinement for forfeiture, though the period of confinement proposed were less
than the court could have substituted, would not be legal mitigation. Ibid., par. 357.
Where a prisoner is serving out a sentence of imprisonment at a military prison or
place of confinement within the command of the officer who approved the proceed-
ings, such officer (or his successor in the command) may, under this article, remit at
any time the unexpired portion of the pending confinement, although the punish-
ment of dishonorable discharge, imposed by the same sentence, may meanwhile have
been duly executed. Ibid., par. 349.
A military commander vested with the power of pardon or mitigation under this
article is not authorized to delegate the same to an inferior. Thus held that a depart-
ment commander could not legally authorize a post commander to remit in part,
upon good behavior, the punishment of a soldier under sentence at the post of the
latter, who had been convicted by a general court, convened, and whose proceedings
had been acted upon, by the former. Ibid. , par. 342.
A punishment can not be pardoned or mitigated under this article where it has been
once duly executed. Where, however, a sentence has been executed only in part, it
may be remitted as to the portion remaining unexecuted. Ibid., par. 343.
The pardoning power here given is not limited in its exercise to the moment of the
approving of the sentence, but may be employed as long as there remains any mate-
rial for its exercise. Under this article, as interpreted by the usage of the service, a
department (or army) commander may remit at any time, in his discretion, for any
cause deemed by him to be sufficient, the unexecuted portion of the sentence of any
soldier confined in his command under a sentence imposed by a court-martial con-
vened by him or by a predecessor in the command. Ibid., par. 344.
lHeld that the Chief of Engineers was authorized to order acourt under this article
for the trial of soldiers of the engineer battalion; the same, in connection with the
engineer officers of the Army, being deemed, in view of sections 1094, 1151, 1154, etc. , of
the Revised Statutes, to constitute a "corps" in the sense of the article. So held that
the Chief of Ordnance was authorized to convene such a court for the trial of the
enlisted men authorized by section 1162, Revised Statutes, to be enlisted by him; the
same being deemed to constitute, with the ordnance officers, such a separate and
distinct branch of the military establishment as to come within the general designa-
tion of "corps" employed in the article. So held that the Chief Signal Officer, under
the provisions of the acts of July 24, 1876, June 20, 1878, etc., relating to his branch
of the service, was authorized to order courts-martial, as commanding a "corps" in
the sense of this article. Ibid., par. 212.
2 The jurisdiction of the regimental court-martial sitting as a criminal tribunal and
that of the garrison court-martial also, in respect to persons and cases have been very
740 MILITARY LAWS OF THE UNITED STATES.
wrongs™88 °f 1852. Any soldier who thinks himself wronged by any
so Irt. war. ofgcer may complain to the commanding officer of his regi-
ment, who shall summon a regimental court-martial for the
doing of justice to the complainant.1 Either party may
appeal from such regimental court-martial to a general
court-martial; but if, upon such second hearing, the appeal
appears to be groundless and vexatious, the party appeal-
ing shall be punished at the discretion of said general
court-martial.2 Thirtieth Article of War.
courte-martili0 " 1853. Every officer commanding3 a garrison, fort, or
other place,* where the troops consist of different corps,5
materially restricted by the act of June 18, 1898 (30 Stat. L., 483), which created the
summary court. These courts can now try only noncommissioned officers, who if
they object to trial by the summary court are required to be brought before regi-
mental or garrison courts for trial, unless their trial by summary court is directed by
the authority ' ' of the officer competent to order their trial by general court-martial, ' '
and by the act of March 2, 1901 (31 Stat. L., 951), which authorizes an enlisted man,
in the case therein stated, to appeal to a garrison or regimental court. See para-
graph 1854, post.
lThe authority to summon a regimental court under this*article is vested in terms
in the regimental commander. A department or other superior commander can not
properly exercise such authority, nor will his order add to the validity or effect of
the proceeding.
2 There are two manifest and unqualified limitations to the province of the regi-
mental court under this article, viz: (1) It can not usurp the place of a court of
inquiry; (2) it can take no cognizance of matters which it would be beyond the
power of the regimental commander to redress. When the matter is beyond the
reach of the commander, it is beyond the jurisdiction of this court. If it involve a
question of irregular detail, excessive work or duty, wrongful stoppages of pay or the
like, a regimental court under this article may be resorted to for the correction of the
wrong. Otherwise when the case is one of a wrong such as can be righted only by
the punishment of the officer. Dig. Opin. J. A. G., par. 42.
The '* regimental court-martial" under the 30th A. W. can not be used as a substi-
tute for a general court-martial or court of inquiry, for it can not try an officer nor
make an investigation for the purpose of determining whether he shall be brought
to trial. When, if the soldier's complaint should be sustained, the only redress
would be a reprimand to the officer, the matter would not be within the jurisdic-
tion of this court. It can only investigate such matters as are susceptible of redress
by the doing of justice to the complainant — that is, when in some way he can be set
right by putting a stop to the wrongful condition which the officer has caused to
exist. Erroneous stoppages of pay, irregularity of detail, the apparent requirement
of more labor than from other soldiers and the like might in this way be investigated
and the wrongful condition put an end to. The court will in such cases record the
evidence and its conclusions of fact and recommend the action to be taken. The
members of the court (and the judge-advocate) will be sworn faithfully to perform
•their duties as members (and judge-advocate) of the court, and the proceedings will
be recorded as nearly as practicable in the same manner as the proceedings of ordi-
nary courts-martial. MANUAL FOR COURTS-MARTIAL.
3 It is not essential that the " officer commanding" should be of the rank of field
officer. A commanding officer, though a captain or lieutenant, may convene a court-
martial under this article, provided he has the required command. Dig. Opin. J. A.
G., par. 214.
4 The general term "other place" is deemed to be intended to cover and include
\ny situation or locality whatever — post, station, camp, halting place, etc. — at which
there may remain or l>e, however temporarily, a separate command or detachment
in which different corps of the Army are represented, as indicated in the next para-
graph. If such a command, so situated, contains three officers, other than the com-
mander, available for service on court-martial, the commander wih be competent to
exercise the authority conferred by this article. Ibid. r par. 216.
5 Held, in view of the early orders (a) relating to the subject and of the practice
ctThe original ordjr is G. O., 5 headquarters of Army, 1843. And see the law as announced later in
G. O.,13, Fourth Military District, 1867.
MILITAKY LAWS OF THE UNITED STATES. 741
shall, subject to the provisions of article eighty,1 be
petent to appoint, for such garrison or other place, courts-
martial, consisting of three officers, to try offenses not 82 Art. war.
capital.2 Eighty -second Article of War.
1854. Regimental and garrison courts-martial and sum- riorWcourtsnfto
mary courts detailed under existing laws to try enlisted pujJjrh-2 1901 ^
men shall not have power to try capital cases or commis- 4> ^ JrfwSi
sioned officers, but shall have power to award punishment
not to exceed' confinement at hard labor for three months
or forfeiture of three months' pay, or both, and in addi-
tion thereto, in the case of noncommissioned officers, reduc-
tion to the ranks, and in the case of first-class privates,
reduction to second-class privates: Provided, That a sum-
mary court shall not adjuge confinement and forfeiture in
excess of a period of one month, unless the accused shall
before trial consent in writing to trial by said court, but
in any case of refusal to so consent, the trial may be had
either by general, regimental, or garrison court-martial,
or by said summary court, but in case of trial by said
summary court without consent as aforesaid, the court
shall not adjuge confinement or forfeiture of pay for more
than one month.3 Section h act of March #, 1901' (31
Stat. L., 951.)
thereunder, that the presence on duty with a garrison, detachment, or other separate
command, at a fort, arsenal, or other post or place, and as a part of such command,
of a single representative, officer or soldier, of a corps, arm, or branch of the service
other than that of which the bulk of the command is composed — as an officer of the
quartermaster, subsistence, or medical department, a chaplain, an ordnance sergeant
or hospital steward, an officer or soldier of artillery where the command consists of
infantry or cavalry, or vice versa, etc. — might be deemed sufficient to fix upon the
command the character of one " where the troops consist of different corps," in the
sense of this article, and to empower the commanding officer to order a court-martial
under the same. The presence, however, with the command of a civilian employee
of the Army — an acting assistant or contract surgeon — could have no such effect.
Dig. Opin. J. A. G., par. 217.
'The Eightieth Article of War, which was repealed by the act of June 18, 1898 (30
Stat. L., 483), gave the field officers court exclusive jurisdiction, in time of war, to
try enlisted men for offenses cognizable by the inferior courts-martial. As this
court wasabolished by the act of June 18, 1898, and its jurisdiction vested in the new
summary court created by that act, this clause is no longer operative.
2 A commanding officer is not authorized to detail himself, with two other officers,
as a court under this (or the preceding) article. An "acting assistant surgeon," not
being an officer of the Army, can not be detailed on such court. Ibid., par. 215.
3Capital offenses (i. e., offenses capitally punishable), not being within the jurisdic-
tion of inferior courts, such courts can not take cognizance of acts specifically made
punishable by article 21, however slight be the offenses actually committed, (a)
While inferior courts have, equally with general courts, jurisdiction of all military
offenses not capital, committed by enlisted men, yet, in view of the limitations upon
their authority to sentence, it is in general inexpedient to resort to them for the trial
of the graver offenses, such as larcenies, aggravated acts of drunkenness, protracted
absences without leave, etc., a proper and adequate punishment for which would be
beyond the power of such tribunals. The more serious offenses should, where prac-
ticable, be referred for trial to general courts, which alone are vested with a full dis-
ci G. O., 21, Headquarters of Army, 1858. And see G. O., 18, War Department, 1859; G. O., 9, Depart-
ment of Utah. 1858, where the proceedings of garrison courts in cases of capital offenses are pronounced
void.
742 MILITARY LAWS OF THE UNITED STATES.
THE SUMMARY COURT.
1855- Tne commanding officer of each garrison, fort, or
fa June is, 1898, otner place, regiment or corps, detached battalion or coru-
v. so, p. 483. pany, or other detachment in the Army, shall have power
to appoint for such place or command, or in his discre-
tion for each battalion thereof, a summary court to con-
sist of one officer to be designated by him, before whom
enlisted men who are to be tried for offenses, such as were
prior to the passage of the act " to promote the adminis-
tration of justice in the Army," approved October first,
eighteen hundred and ninety, cognizable by garrison or
regimental courts-martial, and offenses cognizable by field
officers detailed to try offenders under the provisions of
the eightieth and one hundred and tenth Articles of War,1
shall be brought to trial within twenty-four hours of the
time of the arrest, or as soon thereafter as practicable,2
cretion to impose punishment in proportion to the gravity of the offense. Dig. Opin.
J. A. G., par. 224.
A sentence forfeiting pecuniary allowances in addition to pay, where the entire
forfeiture amounted to a sum greater than one month's pay, held not authorized under
this article. Ibid., par. 220.
A sentence, adjudged by a garrison court, of confinement " till the expiration of
the term of service" of a soldier, held unauthorized unless the soldier had not more
than one month left to serve. Ibid., par. 221.
The limitation of the authority of inferior courts in regard to sentences of impris-
onment and fine, held not to preclude the imposition by them of other punishments
sanctioned by the usage of the service; such, for example, as reduction to the ranks,
either alone or in connection with those or one of those expressly mentioned. Ibid.,
par. 222.
The limitations imposed by the article have reference, of course, to single sentences.
For distinct offenses made the subject of different trials, resulting in separate sen-
tences, a soldier may be placed at one and the same time under several penalties of
forfeiture and imprisonment, or of either, exceeding together the limit affixed by the
article for a single sentence, (a) Ibid., par. 223.
1 This court replaces the summary court created by the act of October 1, 1890 (26 Stat.
L., 648), which was restricted in its operations to a time of peace. The jurisdiction
of the new summary court extends to cases which were formerly tried by regimental
and garrison courts, and is exclusive, in respect to the trial of enlisted men charged
with minor offenses, except in cases of noncommissioned officers who object to being
tried by the summary court. When such objection is made the offender, being a
noncommissioned officer, is entitled to be tried by a regimental or garrison court,
unless the authority for his trial has been obtained from the authority competent to
order the trial of the offender by a general court-martial. The act of June 18, 1898,
became operative, in accordance with its terms, on August 17, 1898 (G. O., 80,
A. G. O., 1898). Commanding officers of division field hospitals and division ambu-
lance companies, being responsible direct to the division surgeons and division
commanders, have authority to appoint summary courts. Par. 2, Circular No. 49,
A. G. O., 1898.
2 The provision of the act that accused soldiers shall be brought before the sum-
mary court for trial "within twenty-four hours from the time of their arrest" is not
a statute of limitations nor jurisdictional in its character, but directory only — direc-
tory upon the officers whose duty it is to bring offenders before the court. The
proceedings will thus be legally valid though the accused does not appear for trial
a See G. O., 18, War Department, 1859.
LAWS OF THE UNITED STATES. 743
except when the accused is to be tried by general court-
martial; but such summary court may be appointed and
the officer designated by superior authority when by him
deemed desirable.1 Act of June 18, 1898 (30 Stat. L.,
1856. The officer holding the summary court shall have
power to administer oaths and to hear and determine such
cases, and when satisfied of the guilt of the accused adjudge
the punishment to be inflicted,2 which said punishment
shall not exceed confinement at hard labor for three months
and forfeiture of three months' pay, and, in addition
thereto, in the case of a noncommissioned officer, reduc-
tion to the ranks; and, in the case of first-class privates,
reduction to second-class privates. Ibid.
1857. There shall be a summary court record kept at each J ggrd-
military post and in the field at the headquarters of the
proper command, in which shall be entered a record of all
cases heard and determined and the action had thereon;
and no sentence adjudged by said summary court shall be
executed until it shall have been approved by the officer
appointing the court, or by the officer commanding for the
time being.3 Ibid.
within the period specified. So held, in a case of an accused soldier arrested on
Saturday, that the court did not, by not sitting on Sunday, lose jurisdiction; and
therefore that it is not necessary that a summary court should ever sit on a Sunday.
Dig. Opin. J. A. G., par. 2395.
The provision in the act in regard to the trial being had within twenty-four hours
of the arrest being directory only, a trial held after that time is entirely valid. Thus,
where a soldier, by reason of drunkenness or otherwise, is not in a condition to be
tried within that time, his trial may be postponed till he is in such condition. Ibid.,
par. 2396.
1 The procedure of the summary court should be similar to that of the older courts-
martial. The charges and specifications should be read to the accused, and he be
required to plead guilty or not guilty, and the witnesses should be sworn. But the
testimony is not set forth in the record. Ibid. , par. 2398. For procedure of this court
see MANUAL FOR COURTS-MARTIAL, pp. 65-69, 121, 122.
Held that the provision of the ninety-fourth Article of War relating to the hours
of session of courts-martial was not applicable to summary courts. Ibid., par. 2397.
2 The act of June 18, 1898, in providing that the trial officer "shall have power to
administer oaths," has reference to the oaths of witnesses. The officer himself is not
sworn. But the witnesses must be sworn; and, in a case in which it appeared that
they were not in fact sworn, held that the proceedings and sentence were invalidated,
and that a forfeiture imposed was illegally charged against the accused, who should
be credited with the amount of the same on the next muster and pay roll. But the
record need not state in terms that the witnesses were sworn; it will be presumed
that the law has been complied with unless the contrary appears. Dig. Opin. J. A.
G., par. 2239.
A summary court is not empowered to issue process of attachment to compel the
attendance of a civilian witness. Ibid., par. 2400.
A summary court is not empowered to impose a sentence of dishonorable discharge.
Such punishment is not in terms authorized by article 83 to be adjudged by regi-
mental or garrison courts, and it is impliedly restricted to general courts by the fourth
Article of War. Ibid., par. 2402.
3 For form of record see MANUAL FOR COURTS-MARTIAL, pp. 121, 122.
744 MILITARY LAWS OF THE UNITED STATES.
officer manding 1858. When but one commissioned officer is present with
Ibid" a command he shall hear and finally determine such cases.1
Ibid.
Non^ommis- 1859. No one while holding the privileges of a certificate
"Tbid °mcers> of eligibility to promotion shall be brought before a sum-
mary court, and noncommissioned officers shall not, if they
object thereto, be brought to trial before summary courts
without the authority of the officer competent to order their
trial by general court-martial, but shall in such cases be
brought to trial before garrison, regimental, or general
courts-martial, as the case may be. Hid.
Approval. 1860. The commanding officers authorized to approve the
sentences of summary courts and superior authority shall
have power to remit or mitigate the same.2 Sec. 3, ibid.
Report. 1861. Post and other commanders shall, in time of peace,
on the last day of each month, make a report to the depart-
ment headquarters of the number of cases determined by
summary court during the month, setting forth the offenses
committed and the penalties awarded, which report shall
be filed in the office of the judge-advocate of the depart-
ment, and may be destroyed when no longer of use.3 Sec.
4, ibid.
MILITARY COMMISSIONS.
?pr8io, 1806 o. 1862. All persons who, in time of war, or of rebellion
37i-SFe2b 13 1862' against the supreme authority of the United States, shall
wo^Mar1 Vis^S!' ^e f°und lurking or acting as spies, in or about any of the
P. 737S' 38' v< 12> fortifications, posts, quarters, or encampments of any of
1 Where a post commander sits as a summary court no approval of the sentence is
required by law, but he should sign the sentence and date his signature. A certifica-
tion by the post adjutant is unnecessary and irregular and should not be permitted.
2 By the act of July 28, 1892, "commanding officers authorized to approve the sen-
tences of summary courts" are empowered to "remit or mitigate the same." Held,
that where a soldier who had been convicted by a summary court had passed into
another command, so that the officer who approved his sentence was no longer his
commanding officer, such officer could not legally exercise the power of remission or
mitigation of the sentence. Dig. Opin. J. A. G., par. 2403.
8 For form of report see MANUAL FOR COURTS-MARTIAL, p. 122.
Discretion respecting trials by summary courts. — Paragraph 7, Circular No. 13, A. G. 0.,
December 5, 1891, reads as follows: "The fact that the number of trials by inferior
courts-martial has greatly increased since the establishment of the summary court
indicates that officers of the Army have the impression that under the present system
they must bring every dereliction of duty before a court for trial, and that they are
allowed no discretion in the matter. This is a mistake. Their discretion is the same
now as it was under the garrison-court system, and they are not obliged to bring
cases before the summary court which they believe ought to be disposed of with an
admonition, or the withholding of privileges or indulgences. The extent of the
exercise of this discretion within those limits is subject to the control of the com-
manding officer." In accordance with the spirit of the foregoing, company com-
manders are authorized, subject to the control of the commanding officer of the post,
to dispose of cases of derelictions of duty in their commands which would be within
the jurisdiction of inferior courts-martial by requiring extra hours of fatigue, unless
the soldier demands a trial. This right to demand a trial must be made known to
him. Circular No. 5, A. G. O., 1898.
MILITARY LAWS OF THE UNITED STATES.
745
the armies of the United States, or elsewhere, shall be
triable by a general court-martial, or by a military com-
mission,1 and shall, on conviction thereof, suffer death.
COURTS OF INQUIRY.
Par.
Par.
1867. Opinion, when given.
1868. Record, authentication.
1869. The same, use in evidence.
1863. Constitution; restriction.
1864. Composition.
1865. Oaths.
1866. Witnesses.
1863. A court of inquiry, to examine into tne nature of ^S** of in~
any transaction of, or accusation or imputation against, 11& Art- War-
any officer or soldier, may be ordered by the President or
by any commanding officer; but, as courts of inquiry
may be perverted to dishonorable purposes, and may be
employed, in the hands of weak and envious commandants,
as engines for the destruction of military merit, they shall
lAuthority and history. — By a practice from 1847, (a) and renewed and firmly estab-
lish during the late war, (6) military commissions have become adopted as authorized
tribunals in this country in time of war. They are simply criminal war courts,
resorted to for the reason that the jurisdiction of courts-martial, creatures as they are
of statute, is restricted by law, and can not be extended to include certain classes of
offenses, which, in war, would go unpunished in the absence of a provisional forum
for the trial of the offenders. Their authority is derived from the Law of War, (c)
though in some cases their powers have been added to by statute, (c?) Their compe-
tency has been recognized not only in acts of Congress, (e) but in Executive procla-
mations, (/) in rulings of the courts, (g) and in opinions of the Attorneys-General, (h)
During the rebellion they were employed in several thousand cases; more recently
they were resorted to under the " Reconstruction" act of 1867; and still later one of
these courts has been convened for the trial of Indians as offenders against the laws
of war.(i) Dig. Opin. J. A. G., par. 1077. See also, ibid., par. 1678-1692.
aSeeMaj. Gen. Scott's G. O. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished, "with im-
portant additions," in G. 0. 190 and 287 of the same year. In this connection, note, also, the institu-
tion by Gen. Scott of "Councils of War" — summary courts for the punishment of certain violations
of the laws of war— as exibited in G. O., Hdqrs. of Army, Nos. 181, 184, and 372, of 1847, and Nos. 35
and 41, of 1848.
6 The first military commission of the war is believed to have been that convened by Mai. Gen
Fremont, by G. 0. 118, Western Department, St. Louis, Sept. 2, 1861.
cSeeG. 0. 100, War Dept., 1863, Sec. I, § 13; do. 1, Dept. of the Missouri, 1862; do. 20, Hdqrs. of
Army, 1847; United States v . Reiter, 13 Am. Law Reg., 534; State v. Stillman, 7 Cold., 341; Heffennan v.
Porter, 6 do., 697. And see also Opins. At. Gen. cited under this §, post.
dSee section 30 of the act of March 3, 1863 (12 Stat. L., 736), declaring that, in time of war, etc.,
murder, manslaughter, robbery, larceny, and other specified crimes, when committed by persons in
the military service, shall be punishable by sentence of court-martial "or military commission,"
etc.— an enactment repeated, as to courts-martial, in the 58th article of war; also, section 38 of the
same act (repeated in section 1343, Rev. Stat.), making spies triable by general court-martial "or
military commission" and punishable with death. See, further, act of July 2, 1864, by which com-
manders of departments and commanding generals in the field were authorized to carry into execu-
tion sentences imposed by military commission upon guerrillas. See, also, sections 6 and 8 of the act
of July 4, 1864 (13 Stat. L., 397) (not now in force), making inspectors in the quartermaster depart-
ment triable and punishable by sentence of court-martial or "military commission " for fraud or neg-
lect of duty, as also other employees and officers of that department for accepting bribes from con-
tractors, etc.; also the reconstruction act of March 2, 1867 (14 Stat. L., 428), by which commanders of
military districts were authorized to convene military commissions for the trial of certain offenders.
eSee the acts cited in last note, together with sections 1199, 1643, and 1344, Rev. Stat., as also the
recent appropriation acts of July 24, 1876, November 21, 1877, June 18, 1878, June 23, 1879, and May 4,
1880, in which, among other items for the Pay Department, appropriation is made "for compensation
for citizen clerks and witnesses attending upon courts-martial and military commissions."
/See the proclamations of September 24, 1862, and April 2, 1866.
oEx parte Vallandigham, 1 Wallace, 243; in the matter of Martin, 45 Barb., 146; Ex parte Bright,
1 Utah, 145; State v. Stillman, 7 Cold., 341. In the last case the court says: " A military commission
is a tribunal now (1870) as well known and recognized in the laws of the United States as a court-
martial." It has been "recognized by the executive, legislative, and judicial departments of the
Government of the United States."
/iSee V Opins. Att. Gen. ,55; XI Id., 297; XII Id., 332; XIII Id., 59; XIV Id., 249.
iThecase of the Modoc Indians tried by military commission in July, 1873. G. ('. M. O. 32, War
Dept., 1873. See XIV Opins. Att. Gen., 249.
746 MILITAKY LAWS OF THE UNITED STATES.
never be ordered by any commanding officer, except upon
a demand by the officer or soldier whose conduct is to be
inquired of.1 One hundred and fifteenth Article of War.
Composition. 1864. A court of inquiry shall consist of one or more
' officers, not exceeding three, and a recorder, to reduce the
proceedings and evidence to writing,2 One hundred and
sixteenth Article of War.
oaths of mem- 1865. The recorder of a court of inquiry shall administer
er. to the members the following oath: " You shall well and
117 Art. War. . , .
truly examine and inquire, according to the evidence, into
1This article authorizes the institution of a court of inquiry (a) only in a case of
an "officer or soldier," and the word "officer," as employed in the articles, is denned
by section 1342, Revised Statutes, to mean commissioned officer. A court of inquiry
can not, therefore, be convened on the application or in a case of a person who is not
an officer (or soldier) of the Army at the time. Such a court can not be ordered to
investigate transactions of, or charges against, a party who, by dismissal, discharge,
resignation, etc., has become separated from the military service, although such
par. 366.
A court of inquiry should not in general be ordered by an inferior — post or regi-
mental—commander where the charges required to be investigated are not such as
an inferior court-martial could legally take cognizance of. Courts of inquiry con-
vened by such commanders are, however, of rare occurrence in our service. Ibid.,
par. 367.
Though a court of inquiry has sometimes been compared to a grand jury, there is
little substantial resemblance between the two bodies. The accused appears and
examines witnesses before such a court as freely as before a court-martial (see article
118), and its proceedings are not required to be secret, but may be open at the dis-
cretion of the court. Ibid., par. 368.
Although neither article 88 nor other provision of the code specifically authorizes
the challenging of the members of a court of inquiry, yet, in the interests of justice
and by the usage of the service in this country, this proceeding is permitted in the
same manner as before courts-martial. Article 117 requires that members of courts
of inquiry shall be sworn "well and truly to examine and inquire, according to the
evidence, without partiality, prejudice," etc.; and it is the sense of the service that
their competency so to do should be liable to be tried by the same tests as in a case
of a court-martial, (b) Ibid., par. 368, note 1.
2 A court of inquiry has no power to punish as for a contempt. Such power of this
nature as is conferred by article 86 is restricted in terms to courts-martial. Moreover,
a court of inquiry, not being in a proper sense a court, can not exercise the strictly
judicial function of punishing contempts. A loose observation of Hough (Authorities,
10), that "contempts before courts of inquiry are as much punishable as before courts-
martial," has been carelessly repeated by several American writers. The recent
English writer, Clode, correctly states the law (as to witnesses) in saying (Mil. and
Mar. Law, 198) that a court of inquiry "has no power to punish them for contumacy
or silence." The act of March 2, 1901 (G. O. 27, A. G. O., 1901), providing for the
punishment of civilian witnesses refusing to appear or testify, is limited by its terms
to general courts-martial.
a A court of inquiry is not a court in the legal sense of the term, but rather a council, commission,
or board of investigation. It does 1191 administer justice; no plea or specific issue is presented to it
for trial; its proceedings are not a trial of guilt or innocence; it does not come to a verdict or pass a
sentence. For purposes of investigation, however, a court of inquiry in this country is clothed with
ample powers, and, in an important case, its opinions may be scarcely less significant and even final than
that of a military court proper, that is to say, a court-martial. 1 Winthrop's Military Law and Prec-
edents, chapter 24.
bSee Macomb, sec. 204; O'Brien. 292; De Hart, 278. In the joint resolution of Congress of February
13, 1874, authorizing the President to convene a certain special court of inquiry, it was "provided
that the accused may be allowed the same right of challenge as allowed by law in trials by court-
martial." It appears, however, to have been regarded in the debate on this resolution (see Con-
gressional Record, vol. 2, Nos. 38,40) that this provision was unnecessary to entitle the party to the
privilege.
MILITARY LAWS OF THE UNITED STATES. 747
the matter now before you, without partiality, favor, affec-
tion, prejudice, or hope of reward: so help you God" After
which the president of the court shall administer to the
recorder the following oath: "You, A B, do swear that
you will, according to your best abilities, accurately and
impartially record the proceedings of the court and the
evidence to be given in the case in hearing: so help you
God." One hundred and seventeenth Article of War.
1866. A court of inquiry, and the recorder thereof, shall m^waenrdtoeSS"
have the same power to summon and examine witnesses as ^M^r^S c
is given to courts-martial and the judge-advocates thereof. ?3^Mar Vises'
Such witnesses shall take the same oath which is taken by ^,5.25, v'. 1-2, P'.
witnesses before courts-martial, * and the party accused 118 Art- War-
shall be permitted to examine and cross-examine them, so
as fully to investigate the circumstances in question. One
hundred and eighteenth Article of War.
1867. A court of inquiry shall not give an opinion on the PPnnion; when
merits of the case inquired of unless specially ordered to n» Art. war.
do so.2 One hundred and nineteenth Article of War.
1 So in the roll.
2 An opinion given by a court of inquiry is not in the nature of a sentence or adjudi-
cation pronounced upon a trial. The accused, upon a subsequent trial by court-martial,
of charges investigated by a court of inquiry, can not plead the proceedings or opinion
of the latter as a former trial, acquittal, or conviction. Dig. Opin. J. A. G., par. 369.
While it is of course desirable that the members of a court of inquiry, directed to
express an opinion, should concur in their conclusions, they are not required to do so
by law or regulation (a). The majority does not govern the minority, as in the case
of a finding or sentence by court-martial. If a member or a minority of members
can not conscientiously, and without a weak yielding of independent convictions, agree
with the majority, it is better that such member or members should formally disagree
and present a separate report or reports accordingly. The very disagreement, indeed,
of intelligent minds is a material and important fact in the case, and one of which the
review' ig authority is entitled to have the advantage in his consideration of and
action upon the same. Ibid., par. 370.
Where, as in the majority of cases, the inquiry is instituted with a view of assisting
the determination by the President, or a military commander, of the question whether
the party should be 'brought to trial, the opinion of the court will properly be as to
whether further proceedings before a court-martial are called for in the case, with the
reasons for the conclusions reached. Where no such view enters into the inquiry,
but the court is convened to investigate a question of military right, responsibility,
conduct, etc., the opinion will properly confine itself to the special question proposed
and its legitimate military relations. A court of inquiry, composed as it is of military
men, will rarely find itself called upon to express an opinion upon questionsof a purely
legal character (6). Ibid., par. 371.
It is not irregular, but authorized, fora court of inquiry, in a proper case, to reflect,
in connection with its opinion, upon any improper language or conduct of the accused,
prosecuting witness, or other person appearing before it during the investigation (c).
a In the case of the court of inquiry (composed of seven general officers) on the Cintra Convention,
in 1808, the members who dissented from the majority were required by the convening authority to
put on record their opinions, and three dissenting opinions were accordingly given. A further instance,
in which two of the five members of the court gave each a separate dissenting opinion, is cited by
Hough ( Precedents, 642). Mainly upon the authority of the former case, both Hough (Precedents, 642)
and Simmons (sec. 339) hold that members nonconcurring with the majority are entitled to have their
opinions reported in the record.
6 In an exceptional case, that of the special court of inquiry authorized by Congress in the joint
resolution of February 13, 1874, the court was required to express an opinion not only upon the
"moral" but upon the "technical and legal responsibility" of the officer for the "offenses" charged.
cThus the court of inquiry on the conduct of the Seminole war adverted, in its opinion, unfavorably
upon certain offensive and reprehensible language employed against each other by the two general
officers concerned, the one in his statement to the court and the other in his official communications,
which were put in evidence. See G. O. 13, Headquarters of Army, 1837.
748 MILITARY LAWS OF THE UNITED STATES.
1868> The Proceedings of a court of inquiry must be
f20Art.w»r. authenticated by the signatures of the recorder and the
president thereof, and delivered to the commanding officer.
One hundred and twentieth Article of War.
1869. The proceedings of a court of inquiry may be ad-
war. minted as evidence by a court-martial, in cases not capital,
nor extending to the dismissal of an officer: Provided,
That the circumstances are such that oral testimony can
not be obtained. 1 One hundred cmd twenty-first Article
of War.
1 While the proceedings of a court of inquiry can not .be admitted as evidence on
the merits upon a trial before a court-martial of an offense for which the sentence of
dismissal will be mandatory upon conviction, («) yet held that upon the trial of such
offense, as upon any other, such proceedings, properly authenticated, would be
admissible in evidence for the purpose of impeaching the statements of a witness
upon the trial who — it was proposed to show — had made quite different statements
upon the hearing before the court of inquiry, (b) Dig. Opin. J. A. G., par. 372.
a Compare G. O..33, Department of Arizona, 1871.
6See this ruling, published, as adopted by the President, in G. C. M. O., 40, Headquarte*s of Army,
CHAJPTER
CITIZENSHIP AND NATURALIZATION.
Par.
1870. Citizenship defined.
1871. Citizenship of children of citizens
born abroad.
1872. Citizenship of married women.
1873. Citizenship of persons born in Ore-
gon.
1874. Rights of citizenship forfeited by
desertion.
1875. Certain soldiers and sailors ex-
empted from forfeitures of last
section.
1876. Avoiding the draft.
1877. Right of expatriation.
1878. Protection to naturalized citizens
in foreign states.
1879. Release of citizens imprisoned by
foreign governments to be de-
manded.
1880. Naturalization of aliens.
Par.
1881. Declarations of intention, how
made.
1882. Aliens honorably discharged from
military service.
1883. Aliens honorably discharged from
the naval service.
1884. Minor residents.
1885. Widow and children of declarants.
1886. Aliens of African nativity and
descent.
1887. Residence required.
1888. Alien enemies not admitted.
1889. Children of persons naturalized.
1890. Police court of District of Columbia
has no power to naturalize aliens.
1891. Naturalization of seamen.
1892. Citizenship to be accorded allottees
and to Indians adopting civilized
life.
CITIZENSHIP.
1870. All persons born in the United States and not sub- fln«tizenship de-
ject to any foreign power, excluding Indians not taxed, are 31^p[' y'li866^?'
declared to be citizens of the United States.1 sec.' 1992'$. s.'
1871. All children heretofore born or hereafter born out citizenship of
t> ,..,.. . children of citi-
of the limits and ]urisdiction of the United States, whose zensbom abroad.
fathers were or may be at the time of their birth citizens |?. »• 4.y- 2, P. iss-
thereof , are declared to be citizens of the United States ;s.i,v.io, p. 604. '
but the rights of citizenship shall not descend to children
whose fathers never resided in the United States.
1872. Any woman who is now or may hereafter be mar- citizenship of
. , . . J married women.
ried to a citizen of the United States, and who might her- n»w>- i<M«£ «•
self be lawfully naturalized, shall be deemed a citizen.2
604.
Planters' Bank v. St. John, 1 Woods, 585; McKay v. Campbell, 2 Saw., 118.
See, also, for a definition of the term "citizen of the United States," the fourteenth
amendment to the Constitution.
2 Kelly v. Owen, 7 Wall, 496.
749
750 MILITARY LAWS OF THE UNITED STATES.
in 1873' All persons born in the district of country for-
yni8, 1872, c. mei'ly known as the Territory of Oregon, and subject to
i72,8.3,V.i7;P:tne jurisdiction of the United States on the 18th May,
sec. i995,R.s. 18Y2, are citizens in the same manner as if born elsewhere
in the United States.
zenS?p%rfeited 18?4. All persons who deserted the military or naval
^Mar^isfe?^: service of the United States and did not return thereto or
loo.8' 21> v' 13' p' report themselves to a provost-marshal within sixty da}Ts
Sec. i996,K.s. after ^he issuance of the proclamation by the President,
dated the llth day of March, 1865, are deemed to have
voluntarily relinquished and forfeited their rights of citi-
zenship, as well as their right to become citizens; and such
deserters shall be forever incapable of holding any office
of trust or profit under the United States, or of exercising
any rights of citizens thereof.1
diersrand sailors 1875. No soldier or sailor, however, who faithfully served
thlS?flfturfesTfaccordmg to nis enlistment until the 19th day of April',
^euiaysi9fi867nc. 1865> and who> without proper authority or leave first
^Sec/i&iVii.s. obtained, quit his command or refused to serve after that
date, shall be held to be a deserter from the Army or Navy ;
but this section shall be construed solely as a removal of
any disability such soldier or sailor may have incurred,
under the preceding section, by the loss of citizenship and
of the right to hold office, in consequence of his desertion.
drtft°iding the 1876> Every person who hereafter deserts the military
79Asa2i3'v18i3> p'or naval service of the United States, or who, being duly
49s'ec 1998 R s enrolled, departs the jurisdiction of the district in which.
he is enrolled, or goes beyond the limits of the United
States, with intent to avoid any draft into the military or
naval service, lawfully ordered, shall be liable to all the
penalties and forfeitures of section nineteen hundred and
ninety -six.1
tnatfon °f expa~ 1877. Whereas the right of expatriation is ft natural and
249Usyi2V8i58' v inherent right of all people, indispensable to the enjoy -
122|ec 1999 R s ment of the rights of life, liberty, and the pursuit of hap-
piness; and whereas in the recognition of this principle
this Government has freely received emigrants from all
nations, and invested them with the rights of citizenship;
and whereas it is claimed that such American citizens,
with their descendants, are subjects of foreign states,
owing allegiance to the governments thereof; and whereas
it is necessary to the maintenance of public peace that
this claim of foreign allegiance should be promptly and
1 These penalties only take effect upon conviction by court-martial. Kurtz v.
Moffett, 115 U.S., 501.
MILITAEY LAWS OF THE UNITED STATES. 751
finally disavowed: Therefore any declaration, instruction,
opinion, order, or decision of any officer of the United
States which denies, restricts, impairs, or questions the
right of expatriation is declared inconsistent with the fun-
damental principles of the Republic.
1878. All naturalized citizens of the United States, while Protection to
. naturalized citi-
in foreign countries, are entitled to and shall receive from zens in foreign
states.
this Government the same protection of persons and prop- July 27, ises.c.
. . ' 249, s. 2, v. 15, p.
erty which is accorded to native-born citizens. 224^ ^^
1879. Whenever it is made known to the President that Release of citi-
• • zens imprisoned
any citizen of the United States has been unjustly deprived by foreign gov-
of his liberty by or under the authority of any foreign gov- demanded.
eminent, it shall be the duty of the President forthwith to 249, s. 3, v. i5,V
demand of that government the reasons of such imprison- sec. 2001, B. s.
rnent; and if it appears to be wrongful and in violation of
the rights of American citizenship, the President shall
forthwith demand the release of such citizen, and if the
release so demanded is unreasonably delayed or refused,
the President shall use such means, not amounting to acts
of war, as he may think necessary and proper to obtain
or effectuate the release; and all the facts and proceedings
relative thereto shall as soon as practicable be communi-
cated by the President to Congress.
1880. An alien may be admitted to become a citizen of Naturalization
the United States in the following manner, and not other- Sec. 2160, K. s.
wise:
First. He shall declare on oath, before a circuit or district Declaration of
court of the United States, or a district or supreme court inApr?°i4, 1802,
of the Territories, or a court of record of any of the States 2,' ppTit 3'i55
having common-law jurisdiction, and a seal and clerk, two istfs.2^', v82t p
years, at least, prior to his admission, that it is bona fide c? 5, ^g,1 p.1®?6
his intention to become a citizen of the United States, and
to renounce forever all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty, and, particularly,
by name, to the prince, potentate, state, or sovereignty of
which the alien may be at the time a citizen or subject.
lrThe power of naturalization is exclusively in Congress. Chirac v. Chirac, 2
Wheat., 260. Jurisdiction for that purpose having been conferred by Congress,
courts of record in the several States and Territories have the power to extend the
privileges of citizenship to aliens by an application of the provisions of the natural-
ization laws of the United States. Campbell v. Gordon, 6 Cr., 176; Stark v. Chesa-
peake Ins. Co., 7 Cr., 420; Chirac v. Chirac, 2 Wheat., 259; Osborn v. United States
Bank, 9 Wheat., 827; Spratt v. Spratt, 4 Pet., 393.
For a discussion of the power of the several States to confer the privilege of State
citizenship upon aliens, see Collet v. Collet (2 Dall., 294).
752 MILITAEY LAWS OF THE UNITED STATES.
po?tatthetocon?§- Second. He shall, at the time of his application to be
? declare, on oath, before some one of the courts
c.2$rs. i^ifpl^ove specified, that he will support the Constitution of
16S- the United States, and that he absolutely and entirely
renounces and abjures all allegiance and fidelity to every
foreign prince, potentate, state, or sovereignty; and, par-
ticularly, by name, to the prince, potentate, state, or sover-
eignty of which he was before a citizen or subject; which
proceedings shall be recorded by the clerk of the court.
u5teesdstetes m Third. It shall be made to appear to the satisfaction of
moS'chwacte? tne court admitting such alien that he has resided within
the United States five years at least, and within the State
or Territory where such court is at the time held, one year
at least; and that during that time he has behaved as a
man of good moral character, attached to the principles of
the Constitution of the United States, and well disposed
to the good order and happiness of the same; but the oath
of the applicant shall in no case be allowed to prove his
residence.1
it ™tos °benobre- Fourth. In case the alien applying to be admitted to cit-
nounced. izenship has borne any hereditary title, or been of any of
the orders of nobility in the kingdom or state from which
he came, he shall, in addition to the above requisites, make
an express renunciation of his title or order of nobility in
the court to which his application is made, and his renun-
ciation shall be recorded in the court.
ingicftheuXted Fifth. Any alien who was residing within the limits and
j^tl9,ib795fore under the jurisdiction of the United States before the
twenty-ninth day of January, one thousand seven hundred
and ninety -five, may be admitted to become a citizen, on
due proof made to some one of the courts above specified,
that he has resided two years, at least, within the jurisdic-
tion of the United States, and one year, at least, immedi-
ately preceding his appliction, within the State or Territory
where such court is at the time held; and on his declaring
on oath that he will support the Constitution of the United
States, and that he absolutely and entirely renounces and
abjures all allegience and fidelity to any foreign prince,
potentate, state, or sovereignty, and, particularly, by name,
1 By the treaty of cession with Russia subjects of that nation inhabiting the Terri-
tory of Alaska at the date of the treaty, and continuing to remain such inhabitants
for three years, became thereupon American citizens. But the treaty neither men-
tions nor refers to British subjects or the subjects of any foreign nation other than
Russia. Such persons, therefore, residing in the Territory, can become citizens only
in the mode and form prescribed by the United States naturalization laws. Dig.
Opin. J. A. Gen., par. 400.
MILITARY LAWS OF THE UNITED STATES. 753
to the prince, potentate, state, or sovereignty whereof he
was before a citizen or subject; and, also, on its appearing
to the satisfaction of the court, that during such term of
two years he has behaved as a man of good moral char-
acter, attached to the Constitution of the United States,
and well disposed to the good order and happiness of the
same; and where the alien, applying for admission to
citizenship, has borne any hereditary title, or been of any
of the orders of nobility in the kingdom or state from which
he came, on his, moreover, making in the court an express
renunciation of his title or order of nobility. All of the
proceedings, required in this condition to be performed in
the court, shall be recorded by the clerk thereof.
Sixth. Any alien who was residing within the limits and ingb^eSenrjS?e
under the jurisdiction of the United States, between theg;™'andjune
eighteenth day of June, one thousand seven hundred and s^z'iVp1^'
ninety-eight, and the eighteenth day of June, one thousand JJ^sH' v82f p'
eight hundred and twelve, and who has continued to reside m
within the same, may be admitted to become a citizen of
the United States without having made any previous dec-
laration of his intention to become such; but whenever
any person, without a certificate of such declaration of
intention, makes application to be admitted a citizen, it
must be proved to the satisfaction of the court that the
applicant was residing within the limits and under the
jurisdiction of the United States before the eighteenth day
of June, one thousand eight hundred and twelve, and has
continued to reside within the same; and the residence of
the applicant within the limits and under the jurisdiction
of the United States, for at least five years immediately
preceding the time of such application, must be proved by
the oath of citizens of the United States, which citizens
shall be named in the record as witnesses; and such con-
tinued residence within the limits and under the jurisdic-
tion of the United States, when satisfactorily proved, and
the place where the applicant has resided for at least five
years shall be stated and set forth, together with the
names of such citizens, in the record of the court admit-
ting the applicant; otherwise the same shall not entitle him
to be considered and deemed a citizen of the United States.
1881. That the declaration of intention to become a citi- Declaration of
j> i_ TT • 10 intention, how
zen oi the U nited States, required by section two thou- m^e. l 1876 c
sand one hundred and sixty-five of the Kevised Statutes5' j
of the United States, may be made by an alien before the
clerk of any of the courts named in said section two thou-
22924—08 48
V
754 MILITARY LAWS OF THE UNITED STATES.
sand one hundred and sixty-five; and all such declarations
heretofore made before any such clerk are hereby declared
as legal and valid as if made before one of the courts named
in said section.
abfyXharged 1882. Any alien of the age of twenty-one years and
service. mihtary upward, who has enlisted, or may enlist, in the armies of the
musy2i%18i2;£ United States, either the regular or volunteer forces, and
59s'ec.2i66,R.s. ^as been, or may be hereafter, honorably discharged, shall
be admitted to become a citizen of the United States, upon
his petition, without any previous declaration of his inten-
tion to become such; and he shall not be required to prove
more than one year's residence within the United States
previous to his application to become such citizen; and the
court admitting such alien shall, in addition to such proof
of residence and good moral character, as now provided by
law, be satisfied by competent proof of such person's having
been honorably discharged from the service of the United
States.1
awyieffscha°rged 1883. Any alien of the age of twenty -one years and up-
servicehe naval ward who has enlisted or may enlist in the United States
2sf p!yi24.' 1894> v' Navy or Marine Corps, and has served or may hereafter
serve five consecutive years in the United States Navy or
one enlistment in the United States Marine Corps, and has
been or may hereafter be honorably discharged, shall be
admitted to become a citizen of the United States upon his
petition, without any previous declaration of his intention
to become such; and the court admitting such alien shall,
in addition to proof of good moral character, be satisfied
by competent proof of such person's service in and honor-
able discharge from the United States Navy or Marine
Corps. Act of July <26, 1894 (28 Stat. Z., 1&4).
1 Aliens, honorably discharged after enlisting in our Army, are not, by such dis-
charge alone, made citizens, but they are thereupon entitled (under a provision of
the act of July 17, 1862, now section 2166, Revised Statutes) to be admitted to become
citizens without previous declaration of intention, upon merely presenting to the
proper court (see section 2165, Revised Statutes) a petition for the purpose, accom-
panied by proof of at least one year's residence within the United States previous to
the application, of good moral character, and of the fact of honorable discharge. Dig.
Opin. J. A. G., par. 401.
Under the act of July 30, 1892, an enlisted man, to be eligible for promotion as
commissioned officer, must be a citizen of the United States. And, in order to be
promptly naturalized, under section 2166, Revised Statutes, he must first be honor-
ably discharged. So, advised that such alien, to be qualified for examination and
appointment under the act, should be discharged and, after naturalization, be reen-
listed. Ibid., par. 403.
The mere enlistment and honorable discharge of an alien as a soldier of our Army
do not per se constitute him a citizen of the United States. He must still make formal
petition to one of the courts, etc., specified in section 2165, Revised Statutes, and
present thereupon the evidence required by section 2166. Ibid., par. 736.
A native-born minor is a citizen of the United States under the fourteenth amend-
ment of the Constitution. Ibid., par. 737.
MILITAEY LAWS OF THE UNITED STATES. 755
1884. Any alien, being under the age of twenty-one *01
years, who has resided in the United States three years is
next preceding his arriving at that age, and who has con-
tinued to reside therein to the time he may make applica-
tion to be admitted a citizen thereof, may, after he arrives
at the age of twenty-one years, and after he has resided
five years within the United States, including the three
years of his minority, be admitted a citizen of the United
States, without having made the declaration required in
the first condition of section twenty-one hundred and sixty-
five; but such alien shall make the declaration required
therein at the time of his admission; and shall further
declare, on oath, and prove to the satisfaction of the court,
that, for two years next preceding, it has been his bona
fide intention to become a citizen of the United States;
and he shall in all other respects compty with the laws in
regard to naturalization.
1885. When any alien, who has complied with the %
condition specified in section twenty-one hundred and sixty- 1304 c
five, dies before he is actually naturalized, the widow and4V<2>oi«api»2^-
Sec. *lt>3,lt.^.
the children of such alien shall be considered as citizens
of the United States, and shall be entitled to all rights
and privileges as such, upon taking the oaths prescribed1
by law.
1886. The provisions of this Title2 shall apply to aliens Aliens of Afri-
[being free white persons, and to aliens] of African nativity descent!™
and to persons of African descent.
256; Feb. 18, 1875, c. 80, v. 18, p. 318. Sec 2169,B.S.
1887. No alien shall be admitted to become a citizen who qi5reddence re'
has not for the continued term of five years next preceding 42Msari|; y81!,' p.
his admission resided within the United States. 81s'ec.2i70,R.s.
1888. No alien who is a native citizen or subject, or a Alien enemies
. not admitted.
denizen of any country, state, or sovereignty with which Apr. H, 1802, c.
the United States are at war, at the time of his applica- July so,' isis, c.'
tion, shall be then admitted to become a citizen of the sec.2m,B.s.
United States; but persons resident within the United
States, or the Territories thereof, on the eighteenth day of
June, in the year one thousand eight hundred and twelve,
who had before that day made a declaration, according to
law, of their intention to become citizens of the United •
States, or who were on that day entitled to become citizens
without making such declaration, may be admitted to
become citizens thereof, notwithstanding they were alien
enemies at the time and in the manner prescribed by the
1 Error in the roll; should be prescribed.
2 Title XXX, Revised Statutes; paragraphs 454-480 of this work,
756 MILITARY LAWS OF THE UNITED STATES.
laws heretofore passed on that subject; nor shall anything
herein contained be taken or construed to interfere with
or prevent the apprehension and removal, agreeably to
law, of any alien enemy at any time previous to the actual
naturalization of such alien.
citizenship of 1889. The children of persons who have been duly natu-
sons naturalized, ralized under any law of the United States, or who, previous
28,8?4Jv.2,p.i&5!to the passing of any law on that subject, by the Govern-
GOTdOT?b6e cement of the United States, may have become citizens of
field, is' Biatcl." any one of the States, under the laws thereof, being under
Sec.2i72, H.S. the age of twenty-one years at the time of the naturaliza-
tion of their parents, shall, if dwelling in the United
States, be considered as citizens thereof; and the children
of persons who now are, or have been, citizens of the
United States, shall, though born out of the limits and
jurisdiction of the United States, be considered as citizens
thereof; but no person heretofore proscribed by any State,
or who has been legally convicted of having joined the
army of Great Britain during the Revolutionary war,
shall be admitted to become a citizen without the consent
of the legislature of the State in which such person was
proscribed.
police court of 1890. The police court of the District of Columbia shall
District of Co-, ->•/?'
lumwa has no have no power to naturalize foreigners.
^sec^m £asu ralize aliens- June 17) 1870> c' 133> s- 5> v- 16> p- 154>
Naturalization 1891. Every seaman, being a foreigner, who declares
. his intention of becoming a citizen of the United States in
c.
322, s. 29, v. 17, p. i i 11 i i .LI
268. any competent court, and shall have served three years on
' board of a merchant vessel of the ^United States subse-
quent to the date of such declaration, may, on his applica-
tion to any competent court, and the production of his
certificate of discharge and good conduct during that time,
together with the certificate of his declaration of intention
to become a citizen, be admitted a citizen of the United
States; and every seaman, being a foreigner, shall, after
his declaration of intention to become a citizen of the
United States, and after he shall have served such three
years, be deemed a citizen of the United States for the
purpose of manning and serving on board any merchant
vessel of the United States, anything to the contrary in
any act of Congress notwithstanding; but such seaman
shall, for all purposes of protection as an American citizen,
be deemed such, after the filing of his declaration of inten-
tion to become such citizen. l
1For statutory provisions respecting seamen in the naval service of the United
States, see paragraph 1883, ante.
MILITARY LAWS OP THE UNITED STATES. 757
1892. That upon the completion of said allotments and becitaSded to
the patenting of the lands to said allottees, each and every ^f6^^
member of the respective bands or tribes of Indians to Cig1ecze6d ^ 8>
whom allotments have been made shall have the benefit of 1887) v- 24> p- m
and be subject to the laws, both civil and criminal, of the
State or Territory in which they may reside; and no Ter-
ritory shall pass or enforce any law denying any such
Indian within its jurisdiction the equal protection of the
law. And every Indian born within the territorial limits
of the United States to whom allotments shall have been
made under the provisions of this act, or under any law or
treaty, and every Indian born within the territorial limits
of the United States who has voluntarily taken up, within
said limits, his residence separate and apart from any tribe
of Indians therein, and has adopted the habits of civilized
life, is hereby declared to be a citizen of the United States,
and is entitled to all the rights, privileges, and immunities
of such citizens, whether said Indian has been or not, by
birth or otherwise, a member of any tribe of Indians within
the territorial limits of the United States without in any
manner impairing or otherwise affecting the right of any
such Indian to tribal or other property.1 Sec. 6, act of
February 8, 1887 (24 Stat. Z.,
xFor the Indian allotment act, see the act of Februarys, 1887 (24 Stat. L., 358-390).
CHAPTER XXXVIII.
THE INDIANS.
INDIAN AGENTS — INDIAN [RESERVATIONS — THE INDIAN COUNTRY.
Par.
1893-1895. The Secretary of the Interior;
the Commissioner of Indian Af-
fairs.
1896-1921. Indian inspectors and Indian
agents; agencies.
1922-1940. Performance of engagements
with Indians; annuities.
Par.
1941-1959. Government and protection
of Indians.
1960-1974. Indian traders.
1975-1985. Sales of liquor to Indians.
1986-2010. Crimes and criminal offenses.
2011-2014. The Indian police.
THE SECRETARY OP THE INTERIOR — THE COMMISSIONER OF INDIAN AFFAIRS.
Par.
1893. Secretary of the Interior; duties.
1894. Commissioner of Indian Affairs;
duties.
Par.
1895. Commissioner of Indian Affairs to
cause laws relating to Indian
service to be compiled for use of
agents, etc.
Ma?6!' 1849 s 1893. The Secretary of the Interior is charged with the
6>gee!'£iVB. s. supervision of public business relating to the following
subjects:
Third. The Indians. Sec. 5, act of March 3, 1849 (9
Stat. Z., 395).
July 9, 1832, s. 1894. The Commissioner of Indian Affairs shall, under
' sec.' IBS, B. s. the direction of the Secretary of the Interior, and agree-
ably to such regulations as the President may prescribe,
have the management of all Indian affairs and of all
matters arising out of Indian relations.
Laws to be 1895. It shall be the duty of the Commissioner of Indian
compiled for use . _ , ., , , . , .,
of agents, etc. Affairs to cause to be compiled and printed for the use of
TVTfl v 1 7 1 &82 R
7, v. 22, p. ss. ' ' Indian agents and inspectors the provisions of the statutes
regulating the performance of their respective duties, and
also to furnish said officers, from time to time, information
of new enactments upon the same subject. Sec. 7, act of
May 17, 1882 (2% Stat. Z., 88).
758
MILITARY LAWS OF THE UNITED STATES.
759
INDIAN INSPECTORS AND INDIAN AGENT8.
Par.
1909. Administration of oaths.
1910. Acknowledgments.
1911. Investigations; oaths to witnesses.
1912. Restrictions on officeholding.
1913. Compensations to be in full.
1914. Traveling expenses.
1915. Additional security.
1916. Discontinuance of agencies.
1917. Consolidation of agencies.
1918-1919. Transfer of agencies.
1920. Discharge of employees.
1921. Duties of Indian agents.
Par.
1896. Indian inspectors; appointment.
1897. Powers and duties.
1898. Indian agents.
1899. Tenure of office.
1900. Bonds.
1901. Limits of agency, etc.
1902. Residence of agents.
1903-1904. Army officers as agents.
1905. Restriction on agents' compensa-
tion.
1906. Special agents, etc. ; appointment.
1907. Sub-Indian agents.
1908. Superintendents of manual training
schools to act as agents.
1896. There shall be appointed by the President, by and
with the advice and consent of the Senate, a sufficient fic^b 14 1873 c
number of Indian inspectors, not exceeding five1 in num-J^'. MarVisTs'
ber, to perform the duties required of such inspectors by
the provisions of this title. Each inspector shall hold his
office for four years, unless sooner removed by the Presi-
dent.
1897. Each Indian superintendency and agency shall be
visited and examined as often as twice a year 2 by one or
more of the inspectors. Such examination shall extend to J|^
a full investigation of all matters pertaining to the busi-
ness of the superintendency or agency, including an exam-
ination of accounts, the manner of expending money, the
number of Indians provided for, contracts of all kinds
connected with the business, the condition of the Indians,
their advancement in civilization, the extent of the reserva-
tions, and what use is made of the lands set apart for that
purpose, and, generally, all matters pertaining to the Indian
service. For the purpose of making such investigations,
each inspector shall have power to examine all books,
papers, and vouchers, to administer oaths, and to examine
on oath all officers and persons employed in the superin-
tendency or agency, and all such other persons as he may
deem necessary or proper. The inspectors, or any of
them, shall have power to suspend any superintendent or
agent or employee, and to designate some person in his
xThe act of May 31, 1900 (31 Stat. L., 224), makes provision for eight Indian
inspectors, one of whom shall be an engineer competent to the location, construction,
and maintenance of irrigation works.
2 The act of March 3, 1875 (18 Stat. L., 422), repealed the above requirement in
respect to semiannual examinations by inspectors.
3 18?5 c
v>
B.s.
760 MILITARY LAWS OF THE UNITED STATES.
place temporarily, subject to the approval of the Presi-
dent, making immediate report of such suspension and
designation; and upon the conclusion of each examination
a report shall be forwarded to the President without delay.
The inspectors, in the discharge of their duties, jointly
and individually, shall have power, by proper legal pro-
ceedings, which it shall be the duty of the district
attorney of the United States for the appropriate district
duly to effectuate, to enforce the laws and to prevent the
violation of law in the administration of affairs in the
several agencies and superintendences. So far as practi-
cable, the examinations of the agencies and superintend-
ences shall be made alternately by different inspectors, so
that the same agency or superintendency may not be
examined twice in succession by the same inspector or
inspectors.
Indian agente. 1898. The President is authorized to appoint from time
Ifr'junek1!7^' to tmie5 ky and with the advice and consent of the Senate,
c'Iec'2052^B4s' ^e following Indian agents:1
Term of office. 1899. Each Indian agent shall hold his office for the term
Feb. 27, 1861, c. <• j. r j x'i i. • • j i • A. j
14, s. 6,v.9, p. 587; of f our years [and until his successor is duly appointed
Apr.8,1864,c.48, -, ,./, -.-, 2
s. 4, v. i3,p. 40. and qualified] .
Bonds. ' * * 1900. Each Indian agent, before entering upon the duties
Feb. 27, 1851, c. » , . ™ i n • i i - i il- j -,i
Hs.6,v.9,p.587;of his office, shall give bond in such penalties and with
i32,r's. 10, v. is, p." such security as the President or the. Secretary of the Inte-
451. . . u
Sec. 2067, JR. s. rior may require/
Limits of su- 1901. The limits of each superintendency, agency, and
a?e n^e^S subagency shall be established by the Secretary of the
Sujune3o!i834, c. Interior, either by tribes or geographical boundaries.
162, s. 7, v. 4, p. 736. Mar 3> 1847( c_ g^ s lf v> 9> p> 203. Sec. 2066, B.S.
1902> Eveiy Indian agent shall reside and keep his
8*6*2060 B s a£fency w^hin or near the territory of the tribe for which
he may be agent, and at such place as the President may
designate, and shall not depart from the limits of his
agency without permission.
1 The act of August 15, 1894 (28 Stat. L., 286), contained the folio whig requirement:
"Hereafter the annual salaries of the several Indian agents shall be as provided for
revisions of
agents and
ion for the
makes pro-
in this act. "(«) This legislation Operated as an express repeal of the provisions of
section 2057, Revised Statutes, in pari materia. The number of Indian agents and
their respective salaries are now fixed in the annual acts of appropriation for the
support of the Indian service. That for March 3, 1901 (31 Stat. L. 1058), mal
vision for forty -nine Indian agents at an aggregate expense of $77,600.
2 Amended by the insertion of the words in brackets by the act of May 17, 1882
(22 Stat. L., 87).
3 For statute authorizing additional security to be required in certain cases see
paragraph 1915, post.
a The act of July 4, 1884 (23 Stat. L., 76), contained a provision repealing all statutes fixing compen-
sation of Indian agents in excess of the amounts therein appropriated. For a list of agencies, with
the salaries thereto pertaining, as fixed by the act of August 15, 1884 (28 Stat. L., 286), see Vol. II,
Supplement to the Revised Statutes, page 244, note 2.
MILITARY LAWS OF THE UNITED STATES. 761
1903. The President may require any military officer of
the United States to execute the duties of an Indian agent; ggjj £
and when such duties are required of any military officer, 162UJef 'i^v'J
he shall perform the same without any other compensa- P%ec!to62, R.S.
tion than his actual traveling expenses.1
1904. Hereafter the President may detail officers of the
United States Army to act as Indian agents at such agen- 30> p- 573-
cies as, in the opinion of the President, may require the
presence of an army officer, and while acting as Indian
agents such officers shall be under the orders and direc-
tion of the Secretary of the Interior.2 Act of July 1,
1898(30 Stat. L., 573).
1905. No compensation beyond their actual expenses for
extra services shall be allowed any Indian agent or sub-icjjay31 1832 ^
agent for services when doing duty under the order of the \$ *• 2> v- 4' p-
Government, detached from their agency and the boundary Sec- 2068' B-s<
of the tribe to which they are agents or subagents.
1906. All special agents and commissioners not appointed ansf com
by the President shall be appointed by the Secretary of erjjar
99,s.l,v.l2,p.792.
Sec. 2067, R.S.
1907. A competent number of sub-Indian agents shall be of
appointed by the President, with a salary of one thousand a^J}JJ'80 1834 c
dollars a year each, to be employed, and to reside wherever Ijjfc 8- b> v- 4» p-
the President may direct, and who shall give bonds, with sec.2056,R.s.
one or more sureties, in the penal sum of one thousand
dollars, for the faithful execution of their duties. But no
subagent shall be appointed who shall reside within the
limits of any agency where there is an agent appointed.
1908. The Commissioner of Indian Affairs, with tlfe J£Sfrt*gJgj
approval of the Secretary of the Interior, may devolve the ooi to act as
duties of any Indian agency upon the superintendent of
the Indian training school located at such agency, when-
ever in his judgment such superintendent can properly
perform the duties of such agency. And the superintend-
ent upon whom such duties devolve shall give bond as
other Indian agents.3 Act of March 3, 1899 (30 Stat. L. , 30' p-
924.) _
1 Officers of the Army acting as Indian agents at places where there are suitable
quarters provided by the Government are not entitled to commutation of quarters.
IV Compt. Dec., 212; III, ibid., 223.
2 The acts of July 1, 1898 (30 Stat. L., 573), March 2, 1899 (ibid., 926), and May 31,
1900 (31 ibid., 224), have contained the requirement that the sums appropriated for
compensation of Indian agents "shall not take effect or become available in any case
for or during the time in which any officer of the Army of the United States shall be
engaged in the performance of the duties of Indian agent at any of the agencies"
named therein.
3The act of June 10, 1896 (29 Stat. L., 321), contained the same requirement.
762 MILITARY LAWS OF THE UNITED STATES.
pen" 1909- Declaration in (pension) claims of Indians may be
2, ^Jfp. 272 ' s' made before a United States Indian agent. Sec. 8, act of
July 26, 1892 (27 Stat. Z., 272).
mratkno°fwdeedd!; 191°- Indian agents are authorized to take acknowledg-
etMa?y3*gi8^'c. ments of deeds and other instruments of writing, and to
^t:s-10>v'10'p- administer oaths in investigations committed to them in
sec.2064,K. s. Jn^ian country, pursuant to such rules and regulations as
may be prescribed for that purpose by the Secretary of
the Interior; and acknowledgments so taken shall have the
same effect as if taken before a justice of the peace.
o£S3Sistmtion 1911t Hereafter each special agent, supervisor of schools,
3ofpai924.18">v'or otner official charged with the investigation of Indian
agencies and schools, in the pursuit of his official duties,
shall have power to administer oaths and to examine, on
oath, all officers and persons 'employed in the Indian serv-
ice, and all such other persons as may be deemed necessary
and proper. Act of March 1, 1899 (30 Stat. Z., 924).
MISCELLANEOUS.
tw™°ffices° 1912- No Person shall hold more than one office at the
?c: same time under this Title;1 nor shall any agent, subagent,
162, s. 10, v. 4, p. interpreter, or person employed under this Title, receive
sec. 2074,R.s. hjs salary while absent from his agency or employment
without leave of the superintendent or Secretary of the
Interior; but such absence shall at no time exceed sixty
days.
prescribed8?.? be 1913t ^e severa^ compensations prescribed by this Title J
injS!e3o 1834 c ska^ be m ^u^ °^ a^ emoluments or allowances whatso-
162, s. 10, v. 4,'p. ever. But, where necessary, a reasonable allowance or
sec.2076,B.s. provision may be made for offices and office contingencies.
trt v°eT?£ge efx- 1914' Where persons are required, in the performance of
pejnune3o 1834 c ^e^r ^u^esj under this Title,1 to travel from one place to
162, s. 10, V. 4,'p. another, their actual expenses, or a reasonable sum in lieu
15Minis^u. s., thereof, may be allowed them, except that no allowance
Sec.2077,B. s. shall be made to any person for travel or expenses in com-
ing to the seat of Government to settle his accounts, unless
thereto required by the Secretary of the Interior.
curit^fronm^t 1915- The President may, from time to time, require
etcraing °mcers' additional security, and in larger amounts, from all per-
lei^Ti? vf^'p! sons charged or trusted, under' the laws of the United
73sec. 2075, R. s. States, with the disbursement or application of money,
goods, or effects of an}^ kind, on account of Indian affairs.
1 Title XXVIII, Revised Statutes.
MILITARY LAWS OF THE UNITED STATES. 763
DISCONTINUANCE OF AGENCIES.
1916. It shall be the duty of the President to dispense
with the services of such Indian agents and superintend- ^.t{Je dispensed
ents as may be practicable; and where it is practicable he June 22^374
shall require the same person to perform the duties of twoj^-^18^14^
agencies or superintendencies for one salary. ^cTma^iuJ.'
1917. The President may, in his discretion, consolidate consolidation
T ,. of agencies, etc.
two or more agencies into one, and where Indians are March i, isss,
located on reservations created by executive order, he
may, with the consent of the tribes to be affected thereby,
expressed in the usual manner, consolidate one or more
tribes, and abolish such agencies as are thereby rendered
unnecessary; and preference shall at all times, as far as
practicable, be given to Indians in the employment of
clerical, mechanical, and other help on reservations and
about agencies. Sec. 6, act of March 1, 1883 (22 Stat. L.,
.
1918. The President shall, whenever he may judge it Discontinuance
» J J » , ' and transfer of
expedient, discontinue any Indian agency, or transfer 1834
'
same, from the place or tribe designated by law, to such ig, s. 4, v. 4, p.
other place or tribe as the public service may require. sec. 2059, B. s.
1919. Whenever any one or more of the superintenden- The same.
July 15, 1870,
cies is abolished by law, or discontinued by the President, c^296,s.6,v.i6,p.
the Indian agents in such superiu tendencies shall report sec. 2054, B. s.
directly to, the Commissioner of Indian Affairs.
1920. The Secretary of the Interior shall, under the Discontinuance
. . of the offices of
direction or the President, cause to be discontinued the subagents, in-
terpreters, etc.
services ot fcuch agents] subagfents, interpreters, and July 9, 1332, c.
, . 174, s. 5, v. 4, p.
mechanics, as may from time to time become unnecessary, 564; Feb. 27,1877,
in consequence of the {immigration} [emigration] of the 'sec.2073,B.s.
Indians, or other causes.
DUTIES OF INDIAN AGENTS.
1921. Each Indian agent shall, within his agency, man- jjjjjf8^ 1834i
age and superintend the intercourse with the Indians, i^2juul'5'i&x>'
agreeably to law; and execute and perform such regula- ^616^Jb4)2^ ^J-
tions and duties, not inconsistent with law, as may be^1.4'^' J-^-
prescribed by the President, the Secretary of the Interior, °; i^pp! 449%5i!
the Commissioner of Indian Affairs, or the Superintendent Sec. 2068, B. s.
of Indian Affairs.1
1 For statutes imposing other duties upon Indian agents see section 9, act of July 4,
1884 (23 Stat. L., 98), requiring a census to be taken. See, also, the annual acts of
appropriation. For the statute establishing the Indian police see the act of May 27,
1878 (20 Stat. L., 86), paragraphs 2011-2014, post.
764
MILITARY LAWS OF THE UNITED STATES.
PERFORMANCE OF ENGAGEMENTS WITH INDIANS.
Par.
1922. No treaties to be made in future.
1923. Abrogation of treaties.
1924. Payment of certain annuities
coin.
1925. Payment of annuities in goods.
1926. Purchases of goods for Indians.
1927. Methods of purchase.
1928. Claims for supplies.
1929. Payment of annuities.
1930. Withholding annuities.
Par.
1931. Army officer to be present at issues.
1932, 1933. Mode of distribution.
1934. Reports of issues; number present.
1935. No annuities to hostile Indians.
1936. No annuities to Indians who have
violated treaties.
1937. Annuities to minors.
1938. No annuities to Indians holding
captives.
1939. 1940. Sale of buildings.
ties with Indian 1922- ^° Indian nation or tribe within the territory of
triMar 3, 1871, c. ^ne United States shall be acknowledged or recognized as
J- an independent nation, tribe, or power with whom the
* **oso it ^
*
P. ^76;s'june' io, United States may contract by treaty; but no obligation of
J?758 c' 122' v' 19' anv treaty lawfully made and ratified with any such Indian
Sec. 2079,R.s. nation or tribe prior to March third, eighteen hundred and
seventy -one, thall be hereby invalidated or impaired.
Abrogation of 1923. Whenever the tribal organization of any Indian
iT*j£iy\ 1862, c. tribe is in actual hostility to the United States, the Presi-
p' dent is authorized, by proclamation, to declare all treaties
with such tribe abrogated by such tribe, if in his opinion
the same can be done consistently with good faith and legal
and national obligations.1
cePrtaSteiSin£- 1924' Tne SecretaiT of tne Treasury is authorized to pay
ties in coin. in coin such of the annuities as by the terms of any treaty
iMtir. of looo, c. •/ •/
Si' 8' 3> v> 13> p' °^ e United States with any Indian tribe are required to
' s'ec.208i,B.s. be paid in coin. >
paymentofan- 1925. The President may, at the request of any Indian
- ui ties in goods. ., , . , • , • i i «
June 30, 1834, c. tribe, to wnicn any annuity is pa}7able in money, cause the
>2, 3. 12, V* 4, p. i . 1 • i -. •11*1
same to be paid in goods, purchased as provided in the
next section.
Purchase of 1926. All merchandise required by any Indian treaty for
dians. l n the Indians, payable after making of such treaty, shall be
162, s. is, V. 4,' pi purchased under the direction of the Secretary of the Inte-
737; June 22, 1874, . . . J,
c. 389, v. is, p. 176; nor, upon proposals to be received, to be based on notices
Mar. 3, 1875, C. .• , j n i j-
132, s. 7, v. is, p. previously to be erven; and all merchandise required at
450; Aug. 15, 1876, f, I-.CTJ- unv u J
c. 289, v. 19, p. 196. the making of any Indian treaty shall be purchased under
' the order of the Commissioner of Indian Affairs by such
person as he shall appoint. All other purchases on account
of the Indians, and all payments to them of money or
Section 2 of the act of March 2, 1875 (18 Stat. L., 449), contains the requirement
that no money appropriated for the Indian service shall be paid to any band of
Indians while said band, or any part thereof, is at war with the United States.
162
737.
Sec. 2082, U.S.
MILITARY LAWS OF THE UNITED STATES. 765
goods, shall be made by such person as the President shall
designate for that purpose.
1927. No goods shall be purchased by the Office of Indian ch^nnerof pur*
Affairs, or its agents, for any tribe, except upon the written u£^J'v?§ £
requisition of the superintendent in charge of the tribe, and 52|ec.2o84,B. s.
only upon public bids in the mode prescribed by the pre-
ceding section.
1928. No claims for supplies for Indians, purchased with- p]-^"18 forsuP-
out authority of law, shall be paid out of any appropria- 29^ulsy215^8™'«;
tion for expenses of the Office of Indian Affairs, or for36^-ec .2o85,R.s,
Indians.
1929. The payment of all moneys and the distribution of in^nnufitiaeys
all goods stipulated to be furnished to any Indians, or tribe ^.istributing
of Indians, shall be made in one of the following ways, as lea^n/v^'p!
the President or the Secretary of the Interior may direct: c3 66,^3, v.g^p'
First. To the chiefs of a tribe, for the tribe. ^%~:ffi
Second. In cases where the imperious interest of the tribe ^^e/ss15^™'.
or the individuals intended to be benefited, or any treaty ilrfc^^fJl ?!
stipulation, requires the intervention of an agency, then to}!; i8?6?c!;289??:
such person as the tribe shall appoint to receive such mon- 19feei.1|o86,B. s.
eys or goods; or if several persons be appointed, then
upon the joint order or receipt of such persons.
Third. To the heads of the families and to the individ-
uals entitled to participate in the moneys or goods.
Fourth. By consent of the tribe, such moneys or goods
may be applied directly, under such regulations, not in-
consistent with treaty stipulations, as may be prescribed
by the Secretary of the Interior, to such purposes as will
best promote the happiness and prosperity of the members
of the tribe and will encourage able-bodied Indians in the
habits of industry and peace.
1930. No annuities, or moneys, or goods, shall be paid of^nn^tiesdfJom
or distributed to Indians while they are under the influ- goJ2xicated per
ence of any description of intoxicating liquor, nor while ee^'
there are good and sufficient reasons leading the officers ^ec-
or agents, whose duty it may be to make such payments
or distribution, to believe that there is any species of
intoxicating liquor within convenient reach of the Indians,
nor until the chiefs and headmen of the tribe shall have
pledged themselves to use all their influence and to make
all proper exertions to prevent the introduction and sale
of such liquor in their country.
1931. The superintendent, agent, or subagent, together
with such military officer as the President may direct, shall J£sery of annui'
766 MILITARY LAWS OF THE UNITED STATES.
i62Usnei!° v8^'?: be P^sent and certify to the delivery of all goods and
i57min423'U'S"money required to be paid or delivered to the Indians.1
Sec. 2088, B.S.
d 1932« At tlle discretion of the President all disbursements
^ moneys, whether for annuities or otherwise, to fulfill
sec. 2089, B.S. treaty stipulations with individual Indians or Indian tribes,
shall be made in person by the superintendents of Indian
affair^, where superintendencies exist, to all Indians or
tribes within the limits of their respective superintend-
encies, in the presence of the local agents and interpreters,
who shall witness the same, under such regulations as the
Secretary of the Interior may direct.
1933- Whenever goods and merchandise are delivered
p. to tne chiefs of a tribe, for the tribe, such goods and mer
sec. 2090, B.S. chandise shall be turned over by the agent or superintend-
ent of such tribe to the chiefs in bulk, and in the original
package, as nearly as practicable, and in the presence of
the headmen of the tribe, if practicable, to be distributed
to the tribe by the chiefs in such manner as the chiefs may
deem best, in the presence of the agent or superintendent.
1934. Whenever the issue of food, clothing, or supplies
re orted8 to *G °^ an^ kind to Indians is provided for, it shall be the duty
isf esV^ l\i PP' °^ ^e a£en^ or commissioner issuing the same, at such
46slcftio9,B.s. issue thereof, whether it be both of food and clothing, or
either of them, or of any kind of supplies, to report to the
Commissioner of Indian Affairs the number of Indians
present and actually receiving the same.
toSpmCakeagay- 1935. ^n a^ payments or disbursements of money to
mMar' 3 1895 s In<^ians individually the Secretary of the Interior is hereby
11, v. 28,'p. 916. authorized, in his discretion, to detail an officer from his
Department or appoint a special agent to make or to super-
intend and inspect such payment; and when made by spe-
compensation. cial agent the Secretary shall fix a reasonable compensation
for the services of such special agent and pay it out of the
money to be disbursed. In all cases the agent making
Bond. such payment shall give bond to the United States in
double the amount to be disbursed^ with good and suffi-
cient security, to be approved by the Secretary, condi-
tioned for the faithful performance of his duties. All
such payments to be made under such rules and regula-
tions as the Secretary may prescribe. Sec. 11, act of
March 3, 1895 (28 Stat. Z., 910).
1 An officer of the Army who, under proper authority, witnesses and certifies to
the insue of annuity goods to Indians is entitled to actual traveling expenses, but
not to mileage, while traveling in the performance of such duty, such expenses to be
paid from the proper Indian appropriation. 5 Compt. Dec., 982.
MILITARY LAWS OF THE UNITED STATES. 767
1936. No moneys or annuities stipulated by any treaty ho^t?ie
with an Indian tribe for which appropriations are made17^r>22'v18fj'£-
shall be expended for, or paid, or delivered to any tribe 51|ec 2100^ BS>
which, since the next preceding payment under such treaty,
has engaged in hostilities against the United States, or
against its citizens peacefully or lawfully sojourning or
traveling within its jurisdiction at the time of such hostil-
ities; nor in such case shall such stipulated payments or
deliveries be resumed until new appropriations shall have
been made therefor by Congress. And the Commissioner
of Indian Affairs shall report to Congress, at each session,
any case of hostilities, by any tribe with which the United
States has treaty stipulations, which has occurred since his
next preceding report.
1937. No delivery of goods or merchandise shall be made Goods withheld
J from chiefs who
to the chiefs of any tribe, by authority of any treaty,
such chiefs have violated the stipulations contained in such tio.ns-
Apr. 10) 1869, c.
treaty upon their part. 16feec2>2ioi'6ls'
1938. All persons whatsoever charged or trusted with Annual ac-
the disbursement or application of money, goods, or effects bursements, etc!
' of any kind for the benefit of the Indians shall settle their c.i62!s.i3,V.4,p!
accounts, annually, at the Department of the Interior onc.ib.s^v'.is.p!
the first day of October; and copies of the same shall be s'ec.209i,n.s.
laid before Congress, at the commencement of the ensuing
session, by the proper accounting officers, together with a
list of the names of all persons to whom money, goods, or
effects have been delivered within the preceding year for
the benefit of the Indians, specifying the amount and ob-
ject for which they were intended, and showing who are
delinquents, if any, in forwarding their accounts according
to the provisions of this section; and also with a list of
the names of all persons appointed or employed under this
Title, with the dates of their appointment or employment,
and the salary and pay of each.
1939. Hereafter all Indians when they arrive at the age Annuities to
of 18 years shall have the right to receive and receipt for Mar- 1. l*w, s.
all annuity money that maybe due or become due to them,
if not otherwise incapacitated under the regulations of the
Indian Office. Sec. 8, act of March 1, 1899 (30 Stat. L.,
947).
1940. The Secretary of the Interior shall withhold from „ Moneys due in-
.., j, T j. i . dians holding
any tribe ot Indians who may hold American captives any ^sericancap"
moneys due them from the United States until such cap-M^ ^o18™-
Kes. No. oA s. o,
tives have been surrendered to the lawful authorities of v-*6'
_ .
the United States.
768
MILITARY LAWS OF THE UNITED STATES.
GOVERNMENT AND PROTECTION OF INDIANS.
Par.
1941. Sending seditious messages.
1942. Carrying seditious messages.
1943. Correspondence with foreign na-
tions.
1944. General superintendence by Presi-
dent.
1945. Survey of reservations.
1946. White men not to -acquire tribal
rights by marriage to Indian
women.
1947. Indian women marrying white
men, to become citizens.
Par.
1948. Evidence of marriage.
1949. Legitimacy of children.
1950. Purchases or grants from Indians.
1951. Driving stock on Indian lands.
1952. Settling on Indian lands.
1953-1955. Protection of Indians desiring
civilized life.
1956. Penalties, how recovered.
1957. Proceedings against goods.
1958. Burden of proof.
1959. Sales of Indian cattle by agents.
Sending sedi-
tious messages;
penalty.
June 30, 1834, c.
1941. Every person who sends any talk, speech, message,
or letter to any Indian nation, tribe, chief, or individual,
i6i, s. is, y. 4, p. wjth an intent to produce a contravention or infraction of
sec. 2in,R.s. any treaty or law of the United States, or to disturb the
peace and tranquillity of the United States, is liable to a
penalty of two thousand dollars.
carrying sedi- 1942. Every person who carries or delivers any talk,
tious messages: J r . J
pejuaney3o 1834 c message? speech, or letter, intended to produce a contra-
i6i, s. 14,' v. 4,'p. vention or infraction of any treaty or law of the United
sec. 2112, B.S. States, or to disturb the peace or tranquillity of the United
States, knowing the contents thereof, to or from any In-
dian nation, tribe, chief, or individual, from or to any per-
son or persons whatever, residing within the United States,
or from or to any subject, citizen, or agent of any foreign
power or state, is liable to a penalty of one thousand
dollars.
1943. Every person who carries on a correspondence, by
nations, to letter or otherwise, with any foreign nation or power, with
Wjunee3oai834 c an in^en^ to m^uce such foreign nation or power to excite
lei, s. 15,' v. 4,'p. any Indian nation, tribe, chief, or individual to war against
sec. 2ii3,R.s. the United States, or to the violation of any existing
treaty; or who alienates, or attempts to alienate, the con-
fidence of any Indian or Indians from the Government of
the United States, is liable to a penalty of one thousand
dollars.
General super- 1944. The President is authorized to exercise general
intendence by . . ... .. ' , . ,
the President superintendence and care over any tribe or nation which
over tribes re- , , « , ., , ,*
moved west of was removed upon an exchange or territory under autnor-
May^Mm'c. ity of the act of May twenty-eighth, eighteen hundred
148 ss 7 8 v 4
P. 412. ' and thirtv, "to provide for an exchange of lands with the
^Ur 21 1 I li S
' Indians residing in any of the States or Territories, and for
their removal west of the Mississippi," and to cause such
MILITARY LAWS OF THE UNITED STATES. 769
tribe or nation to be protected, at their new residence,
against all interruption or disturbance from any other tribe
or nation of Indians, or from any other person or persons
whatever. 1
1945. Whenever it becomes necessary to survey any In-di^JTreserva-
dian or other reservations, or any land, the same shall betlc^ 8, 1864, c.
surveyed under the direction and control of the General 4%s;06;2iil,R.4s;
Land Office, and as nearly as may be in conformity to the
rules and regulations under which other public lands are
surveyed.
1946. No white man, not otherwise a member of anv white men
•" marrying Indian
tribe of Indians, who may hereafter marry an Indian wj>men
woman, member of anv Indian tribe in the United States rights.
Aug. y,
or any of its Territories, except the Five Civilized Tribes 2&. P- 392.
in the Indian Territory, shall by such marriage hereafter
acquire any right to any tribal property, privilege, or inter-
est whatever to which any member of such tribe is entitled.2
Act of August 9, 1888 (25 Stat. L.,
1947. Every Indian woman, member of any such tribe Indian women
. T i. , £ ' , . , . . marrying white
01 Indians, who may nerearter be married to any citizen men to become
of the United States is hereby declared to become by guoh sec. 2, *wd
marriage a citizen of the United States, with all the
rights, privileges, and immunities of any such citizen,
being a married woman: Provided, That nothing in this Proviso.
lThe internal affairs of the Indians were never interfered with by England, and
the United States has always recognized them as nations separate from, but depend-
ent upon, us. Worcester?;. Georgia, 6 Pet., 515.
The States can not withdraw Indians within their limits from the operation of the
laws of Congress regulating trade with them. U. S. v. Holliday, 3 Wall., 407.
If the tribal organization is recognized by the National Government as existing,
the States can not regard it as gone. The Kansas Indians, 5 Wall., 737.
While the Government of the United States has recognized in the Indian tribes
heretofore a state of semiindependence and pupilage, it has the right and authority,
instead of controlling them by treaties, to govern them by acts of Congress, they
being within the geographical limits of the United States and being necessarily sub-
ject to the laws which Congress may enact for their protection and for the protection
of the people with whom they come in contact. U. S. v. Kagama, 118 U. S., 375;
Choctaw Nation v. U. S., 119 U. S., 1.
The States have no such power over them as long as they maintain their tribal
relations. Ibid.
The Indians owe no allegiance to a State within which their reservation may be
established, and the State gives them no protection. Ibid.
Where Indians on a reservation made by order of the President are organized
tribes or bands, and are placed under the charge of an agent appointed by the Gov-
ernment, the laws applicable to Indian reservations must be regarded as applicable
to them. XVIII Opin. Att. Gen., 563.
2 The fact that a man is permitted to live on a reservation with his Indian wife does
not raise the presumption that the Government intended that he should acquire
the status of a tribal Indian. Stiff v. McLoughlin, 48 Pac. Rep., 232. One not an
Indian acquires no tribal relations by marriage with an Indian woman and residence
on a reservation. Ibid. See also Nofire v. U. S., 164 U. S., 657. For rights of the
issue of such marriages see sec. 10, act of June 7, 1897 (30 Stat. L., 62), par. 1949,
post.
22924—08 49
770 MILITARY LAWS OF THE UNITED STATES.
act contained shall impair or in any way affect the right or
Tribal rights. ^tle of suc\l married woman to any tribal property or any
interest therein. Sec. 2, ibid.
marnagence °f 1948. Whenever the marriage of aoy white man with
sec. 3, ibid, any Indian woman, a member of any such tribe of Indians,
is required or offered to be proved in any judicial pro-
ceeding, evidence of the admission of such fact by the
party against whom the proceeding is had, or evidence of
general repute, or of cohabitation as married persons, or any
other circumstantial or presumptive evidence from which
the fact may be inferred, shall be competent. Sec. 3, ibid.
chmfrieJfiacy °f 1949. A^ children born of a marriage heretofore solemn -
ir/v^V8*?)7' s' ized between a white man and an Indian women bv blood
-LU) v» uU» p. O^. •/
and not by adoption, where said Indian woman is at this
time, or was at the time of her death, recognized by any
tribe, shall have the same rights and privileges to the
property of the tribe to which the mother belongs, or
belonged at the time of her death, by blood, as any other
member of the tribe, and no prior act of Congress shall
be construed to debar such child of such right. Sec. 10,
act of June 7, 1897 (30 Stat. Z., 6'%).
grantshfrom in- 1950. No purchase, grant, lease, or other conveyance of
June so, 1834, c. lands, or of any title or claim thereto, from any Indian
730 8' 12> v' 4) P> nation or tribe of Indians shall be of any validity in law
see^Mcintofh or equity unless the same be made by treaty or convention
8Stt5.''ar?6,B.s. entered into pursuant to the Constitution. Every person
who, not being employed under the authority of the United
States, attempts to negotiate such treaty or convention,
directly or indirectly, or to treat with an}^ such nation or
tribe of Indians for the title or purchase of any lands by
them held or claimed, is liable to a penalty of one thousand
dollars. The agent of any State who may be present at
any treat}?- held with Indians under the authority of the
United States, in the presence and with the approbation of
the commissioner of the United States appointed to hold
the same, may, however, propose to, and adjust with, the
Indians the compensation to be made for their claim to
lands within such State which shall be extinguished by
treaty.1
to?4?5a Indian 1951. Every person who drives or otherwise conveys
Iajune3o 1834 c anJT s^ock of horses, mules, or cattle to range and feed on
lei, s. 9, v. 4, p. anv jan(j belonging to any Indian or Indian tribe, without
1 The inhibition contained in section 2116 of the Revised Statutes has the same
application to individual Indians that it has to Indian nationsand tribes. XVIII Opin.
Att. Gen., 486.
MILITARY LAWS OF THE UNITED STATES. 771
the consent of such tribe, is liable to a penalty of one J^, f saw.^s"
dollar for each animal of such stock.1 8ec.aii7,fe.s.
1952. Every person who makes a settlement on any 8^lyiSf i?nds
lands belonging, secured, or granted by treaty with
United States to any Indian tribe, or surveys or attempts
to survey such lands, or to designate any of the boundaries 73^c> 2ii8,K.s.
by marking trees, or otherwise, is liable to a penalty of
one thousand dollars. The President may, moreover, take
such measures and empW such military force as he may
judge necessary to remove any such person from the lands.2
1953. Whenever any Indian, being a member of any band In!SsCdesMng
or tribe with whom the Government has or shall have ^JjjJSiMMa c
entered into treaty stipulations, being desirous to adopt the J°*- s- *• v- 12' P-
habits of civilized life, has had a portion of the lands belong- Sec- 2119> B- s-
ing to his tribe allotted to him in severalty, in pursuance
of such treaty stipulations, the agent and superintendent of
such tribe shall take such measures, not inconsistent with
law, as may be necessary to protect such Indian in the
quiet enjoyment of the lands so allotted to him.
1954. Whenever anv person of Indian blood belonging Indians tres
~ . . . , .^passing upon
to a band or tribe which receives or is entitled to receive lands of civilized
annuities from the United States, and who has not adopted June 14, 186-2, c.
101 s. 2 v. 12 p.
the habits and customs of civilized life and received his 427!
. • i ' • • i Sec. 2120, K. S.
lands in severalty by allotment, as mentioned in the pre-
ceding section, commits any trespass upon the lands or
premises of any Indian who has so received his lands by
allotment, the superintendent and agent of such band or
tribe shall ascertain the damages resulting from such tres-
pass, and the sum so ascertained shall be withheld from the
payment next thereafter to be made, either to the band or
tribe to which the party committing such trespass shall
belong, as in the discretion of the superintendent he shall
deem proper; and the sum so withheld shall, if the Secre-
tary of the Interior approves, be paid over by the agent or
superintendent to the party injured.
1955. Whenever such trespasser as is mentioned in the
preceding section is the chief or headman of a band orPass
Sawyer, 148. See also U. S. v. Loring, 34 Fed. Rep., 715, and XVI Opin. Att. Gen.,
568. There is no law empowering the Interior Department to authorize Indians
to lease their lands for grazing purposes. Neither the President nor the
Secretary has authority to make a lease, for such purposes, of any part of an Indian
reservation; nor would their approval of any such lease made bv Indians render it
lawful and valid. XVIII Opin. Att. Gen., 235.
2 Worcester v. Georgia, 6 Peters, 515; Clark c. Smith, 13 ibid., 195; Lattiiner v.
Poteet, 4 McLean, 82.
772 MILITARY LAWS OF THE UNITED STATES.
ioiu?e314v18i?'p' tribe, the superintendent of Indian affairs in his district
4s?ec. 2121, R. s. sna^ also suspend the trespasser from his office for three
months, and shall during- that time deprive him of all tho
benefits and emoluments connected therewith; but the
chief or headman may be sooner restored to his former
standing if the superintendent shall so direct.
recovered8' how 1956> A11 penalties which shall accrue under this Title l
be sued for and recovered in an action in the nature
7 Sec. 2124 R s °^ <dn ac^i°n of debt, in the name of the United States,
before any court having jurisdiction of the same, in any
State or Territory in which the defendant shall be arrested
or found, the one half to the use of the informer and the
other half to the use of the United States, except when the
prosecution shall be first instituted on behalf of the United
States, in which case the whole shall be to their use.
a ainsteoodsga 1957. When goods or other property shall be seized for
June so, 1834, c. any violation of this Title,1 it shall be lawful for the person
lei, s. 28, v. 4, p. prosecuting on behalf of the United States to proceed
Sec. 2125, R.S. against such goods, or other property, in the manner
directed to be observed in the case of goods, wares, or
merchandise brought into the United States in violation
of the revenue laws.
proof rden °f 1958> I" all t™!8 about the right of property in which
wiu™22'v®i'p an Indian raav be a party on one side and a white person
7^ec 2126 R s on ^ne °^ner, the burden of proof shall rest upon the
white person whenever the Indian shall make out a pre-
sumption of title in himself from the fact of previous pos-
session or ownership.
etcalof °the inil- 1959- The agent of each tribe of Indians, lawfully resid-
ans 'by agents. mg jn ^he Indian country,2 is authorized to sell for the
1 Title XXVIII, Revised Statutes.
-The term "Indian country" contained in section 1 of the act of June 30, 1834 (4
Stat. L., 79), though not incorporated in the Revised Statutes, and though repealed
simultaneously with their enactment, may be referred to in order to determine what
is meant by the term when used in statutes; and it applies to all the country to
which the Indian title has not been extinguished within the limits of the United
States, whether within a reservation or not, and whether acquired before or since
the passage of that act. Ex parte Crow Dog, 109 U. S., 556; Bates v. Clark, 95 U. S.,
204. See also, as to the status of the Indian Territory, Cook v. U. S., 138 U. S., 157.
Held (October, 1877) that the term "Indian country," as employed in the statutes
regulating trade and intercourse with the Indians (see, particularly, Ch. IV, Title
XXVIII, Rev. Stat.), might properly be defined in general as including the follow-
ing territory, viz: Indian reservations occupied by Indian tribes; other districts so
occupied to' which the Indian title has not been extinguished; any districts not in
other respects Indian country over which the operation of those " statutes maybe
extended by treaty or act of Congress. ( a ) Dig. Opin. J. A. G., par. 1498.
a See this opinion as adopted and incorporated in G. O. 97, Headquarters of Army, 187?; also, in the
same connection, XIV Opins. Att. Gen., 290- United States r. Forty-three Gallons of Whisky, 3 Otto, 188;
Bates v. Clark, f> ibid.. 204; U. S. r. SevelofY. 2 Sawyer, 31 1. That, in view of the act of March 3. 1873,
extending to it certain provisions of the act of June SO. 1X31, the Territory of Alaska is " Indian coun-
try," so far as concerns the introduction and disposition of spirituous liquor, and that persons violating
such provisions may therefore be arrested by military force. See In re Carr, 3 Sawyer, 316; also cita-
tion from same case in note to Alaska, § 2, and XIV Opins. Att. Gen., 327; Patchen v. U. S., 11 Fed.
Rep., 47; U. S. v. Forty-three Cases of Cognac Brandy, 14 ibid., 539.
MILITARY LAWS OF THE UNITED STATES.
773
benefit of such Indians any cattle, horses, or other live 12JlHsr-f
stock belonging to the Indians, and not required for their 56|;M. .,127 B g
use and subsistence, under such regulations as shall be
established by the Secretary of the Interior. But no such
sale shall be made so as to interfere with the execution of
any order lawfully issued by the Secretary of War con-
nected with the movement or subsistence of troops.
INDIAN TRADERS.
Par.
1960. Appointment.
1961. Appointees.
1962. Licenses to trade.
1963. Refusal of license.
1964. Revocation of licenses.
1965. Prohibition of trade by President.
Par.
1968. Expulsion of foreigners without
passports from reservations.
1969. Prohibited purchases and sales.
1970. Sale of arms to Indians.
1971. The same.
1972. Hunting on reservations forbidden.
1973. Removing cattle; penalty.
1974. Sales of cattle; penalty.
1966. Penalty for unlicensed trading.
1 967. Em'ployees not to trade.
1960. Hereafter the Commissioner of Indian Affairs shall
have the sole power and authority to appoint traders to 5> v- 19> p* 20°*
the Indian tribes, and to make such rules and regulations
as he may deem just and proper, specifying the kind and
quantity of goods and the prices at which such goods shall
be sold to the Indians. Sec. 5, act of August 15, 1876
(<19 Stat. Z., WO].
1961. Any loyal person, a citizen of the United States, Appointees.
of good moral character, shall be permitted to trade with 266, s. 4, v. 14, 'p!
any Indian tribe upon giving bond to the United States in s"ec.2i28,B.s.
the penal sum of not less than five nor more than ten thou-
sand dollars, with at least two good sureties, to be approved
by the superintendent of the district within which such
person proposes to trade, or by the United States district
judge or district attorney for the district in which the
obligor resides, renewable each year, conditioned that such
person will faithfully observe all laws and regulations made
for the government of trade and intercourse with the
Indian tribes, and in no respect violate the same.
1962. No person shall be permitted to trade with any of tr^ecense to
the Indians in the Indian country without a license there- i6iu"el°'v8844'p'
for from a superintendent of Indian affairs, or Indian 72^j s r cisna l
agent, or subagent, which license shall be issued for a M§ec?i'2954B s.
term not exceeding two years for the tribes east of the
Mississippi and not exceeding three years for the tribes
west of that river.1
1 The Secretary of War has no general authority to license trade with Indians in
the Indian country. By section 2129, Revised Statutes, such licenses can be given
774 MILITARY LAWS OF THE UNITED STATES.
censeusal ' 1963- Any superintendent or agent may refuse an appli-
i6ius.e|°v1.84!'p! Cation for a license to trade if he is satisfied that the appli-
72s'ec.2i3o,K.s. c'an^ ™ a person of bad character, or that it would be
improper to permit him to reside in the Indian country, or
if a license previously granted to such applicant has been
revoked, or a forfeiture of his bond decreed. But an
appeal may be had from the agent or the superintendent
to the Commissioner of Indian Affairs.
ii *nlecati°n °f 1964- The superintendent of the district shall have power
i6i,Use!0V184?'p.' to revoke and cancel any license to trade within the Indian
72sec.2isi,R.s. country whenever the person licensed has, in his opinion,
transgressed any of the laws or regulations provided for
the government of trade and intercourse with the Indian
tribes, or whenever, in his opinion, it is improper to per-
mit such person to remain in the Indian country. No
trade with the tribes shall be carried on within their
boundary except at certain suitable and convenient places,
to be designated from time to time by the superintendents,
agents, and subagents, and to be inserted in the license.
The persons granting or revoking such licenses shall forth-
with report the same to the Commissioner of Indian
Affairs for his approval or disapproval.1
trPadheibby°?h0e 1965. The President is authorized, whenever in his opin-
P je^e5j'i884, c. i°n the public interest may require the same, to prohibit the
ig, s. 3, v. 4, p. introduction of goods, or of any particular article, into the
Sec'2132'R's* country belonging to any Indian tribe, and to direct all
licenses to trade with such tribe to be revoked, and all
applications therefor to be rejected. No trader to any
other tribe shall, so long as such prohibition may continue,
trade with any Indians of or for the tribe -against which
such prohibition is issued.
tradeingawUhofSt 1966. Any person, other than an Indian of the full blood,
a June so, 1834, c. who shall attempt to reside in the Indian country, or on
729; jufy 3^1882; any Indian reservation^ as a trader, or to introduce goods,
eiS.V2iI^R.7s.' or to trade therein, without such license, shall forfeit all
merchandise offered for sale to the Indians or found in his
only by a "superintendent of Indian affairs. Indian agent, or subagent." Dig. Opiii.
J. A. G., par. 1499.
A trader at a military post in the Indian country can not lawfully maintain a traffic
with the Indians unless he be properly licensed for such trade. XVI Opins. Att.
Gen., 403. License to trade with the Indians at the establishments of post traders
can not be given by the military authorities. Ibid.
1 The fact that an Indian trader is licensed by the Government to trade with the
Indians does not exempt his stock in trade from State and county taxation, such
trader being a mere licensee, and not an agent of the Government. Cosier v. McMil-
lan, 56 Pac. Rep., 965. For a contrary decision, in which it was held that an Indian
trader was an agent of the United States and, for that reason, exempt from State and
Territorial taxation, see Fremont County (Wyo.) v. Moore, 19 Pac. Eep., 438.
MILITARY LAWS OF THE UNITED STATES. 775
possession, and shall moreover be liable to a penalty of
five hundred dollars: Provided, That this section shall not
apply to anv person residing1 among or trading with the
Cboctaws, Cherokees, Chickasaws, Creeks, or Seminoles,
commonly called the Five Civilized Tribes, residing in said
Indian country, and belonging to the Union Agency therein:
And provided further^ That no white person shall be em-
ployed as a clerk by any Indian trader, except such as
trade with said Five Civilized Tribes, unless first licensed so
to do by the Commissioner of Indian Affairs, under and in
conformity to regulations to be established by the Secre-
tary of the Interior. Act of July 31, 1882 (22 Stat. L. , 179).
1967. No person employed in Indian affairs shall have to^ra§e°w1th "he
any interest or concern in any trade with the Indians ^me so, ISM, e.
except for, and on account of, the United States; and anvyss! s'
person offending herein shall be liable to a penalty of five
thousand dollars, and shall be removed from his office.
1968. Every foreigner1 who shall go to the Indian coun- foreignere enter-
try without a passport from the Department of the Inte- ^JggSt«JJ*:
rior, superintendent, agent, or subagent of Indian affairs, or ^jJieao, 1884> c>
officer of the United States commanding the nearest mili-lgj; s> 6> v< 4- p-
tary post on the frontiers, or who shall remain intentionally Sec* 2134'u-s-
therein after the expiration of such passport, shall be liable
to a penalty of one thousand dollars. Every such pass-
port shall express the object of such person, the time he is
allowed to remain, and the route he is to travel.
1969. Every person, other than an Indian, who, within
the Indian country, purchases or receives of any Indian,
in the way of barter, trade, or pledge, a gun, trap, or other 735Je(. 2is»,K.s.
article commonly used in hunting, any instrument of hus-
bandry, or cooking utensils of the kind commonly obtained
by the Indians in their intercourse with the white people,
or any article of clothing, except skins or furs, shall be
liable to a penalty of fifty dollars.
1970. The Secretary of the Interior shall adopt such e^aletoofbe™i
rules as may be necessary to prohibit the sale of arms or h^^4| 1873 v<
ammunition within any district or country occupied by ^g^.4^'? R. s.
uncivilized or hostile Indians, and shall enforce the same.
1971. If any trader, his agent, or any person acting f or
or under him, shall sell any arms or ammunition at his JSi
trading post or other place within any district or country
alty.
^he word "foreigner" in section 2134 of the Revised Statutes is used in its ordi-
nary signification, meaning one who is born out of the United States and is not
naturalized, or who owes allegiance to any other government than that of the United
States. XVIII Opin. Atty. Gen., 555.
776 MILITARY LAWS OF THE UNITED STATES.
i38,es.'iVi7?'p! occupied by uncivilized or hostile Indians, contrary to the
j5R.JNog2o,'v8i9; rules and regulations of the Secretary of the Interior, such
P's2ec." 2136, R.S. trader shall forfeit his right to trade with the Indians, and
the Secretary shall exclude such trader, and the agent, or
other person so offending, from the district or country so
occupied.
MISCELLANEOUS PROVISIONS.
huPnt°ingbionniS- 1972' EveiT person, other than an Indian, who, within
dij5ne3odi834,c. the limits of any tribe with whom the United States has
i6i, s. * .4, p. existing treaties, hunts, or traps, or takes and destroys
Sec. 2137, R. s. any peltries or game, except for subsistence in the Indian
country, shall forfeit all the traps, guns, and ammunition
in his possession, used or procured to be used for that
purpose, and all peltries so taken; and shall be liable in
addition to a penalty of five hundred dollars.1
movfn^lTtfe 1973< Every person who drives or removes, except by
couirtrylndianaut^lor^3r °^ an or&Qr lawfully issued by*the Secretary of
m^sV8!?' p' War, connected with the movement or subsistence of troops,
^le-i. 2138, K. s. an3T cattle, horses, or other stock from the Indian country
for the purposes of trade or commerce, shall be punishable
by imprisonment for not more than three years, or by a
fine of not more than five thousand dollars, or both.2
eSim?ty°f c&tile' 1974. Where Indians are in possession or control of
23Jp1 944' 1884' v' cattle or their increase which have been purchased by the
Government, such cattle shall not be sold to any person not
a member of the tribe to which the owners of the cattle
belong, or to any citizen of the United States, whether
intermarried with the Indians or not, except with the con-
sent in writing of the agent of the tribe to which the
owner or possessor of the cattle belongs. And all sales
made in violation of this provision shall be void, and the
offending purchaser, on conviction thereof, shall be fined
not less than five hundred dollars and imprisoned not less
than six months. Act of July 4, 1884 (®$ Stat. L., 94).
1 Property seized by the military under the provisions of section 2137 of the Revised
Statutes should, as soon as practicable, after report of seizure to the United States
attorney, be placed in the custody of the proper civil officers. XVIII Opin. Att.
Gen., 555; ibid., 544.
Section 5388 of the Revised Statutes makes 110 provision for seizure of property
belonging to a wrongdoer. XVIII Opin. Att. Gen., 555.
* See paragraph 1959, ante.
MILITARY LAWS OF THE UNITED STATES. 777
SALES OF LIQUOR TO INDIANS— INTRODUCING LIQUOR INTO THE INDIAN COUNTRY.
Par.
1981. Sales to minors.
1982. Sales in the Indian Territory.
1983. Power to search for liquors, etc.
1984. Military persons not to furnish,
barter, donate, etc., liquors.
1985. Sales in Indian country.
Par.
1975. Introduction of liquor, etc.
1976. The same.
1977-1978. Authority of War Depart-
ment; repealing clause.
1979. Complaints; arrests; trials.
1980. Indians in Alaska.
1975. No ardent spirits, ale, beer, wine, or intoxicating
liquor or liquors of whatever kind shall be introduced,
under any pretense, into the Indian country.1 Every per- depenalty.
son who sells, exchanges, gives, barters, or disposes of 27^ly2g; 1892> v-
any ardent spirits, ale, beer, wine, or intoxicating liquors Sec. 2139, B.S.
of any kind to any Indian under charge of any Indian
superintendent or agent, or introduces or attempts to
introduce any ardent spirits, ale, wine, beer, or intoxicat-
ing liquor of any kind into the Indian country shall be
punished by imprisonment for not more than two years
and b}^ tine of not more than three hundred dollars for
each offense. Act of July 23, 1892 (27 Stat. Z., 260).
1976. Any person who shall sell, give away, dispose of, J^n.SjIbr.v.
exchange, or barter any malt, spirituous, or vinous liquor, 29- P- 506-
including beer, ale and wine, 91* any ardent or other in-
toxicating liquor of any kind whatsoever, or any essence,
extract, bitters, preparation, compound, composition, or
any article whatsoever, under any name, label, or brand,
which produces intoxication, to any Indian to whom allot-
ment of land has been made while the title to the same
shall be held in trust by the Government, or to any Indian
a ward of the Government under charge of any Indian
superintendent or agent, or any Indian, including mixed
1 A stock of liquors is not introduced into the Indian country by being transported
across an Indian reservation to a place where it may be lawfully sold and is not sub-
ject to seizure while in transit nor after its arrival at its place of destination. U. S.
r. Four Bottles of Sour Mash Whisky, 90 Feb. Rep., 720.
The disposition of spirituous liquors to an Indian, under the charge of an Indian
agent, who has abandoned his nomadic life and tribal relations and adopted the hab-
its and manners of civilized people violates section 2139 of the Revised Statutes.
U. S. v. Osborn, 52 Fed. Rep., 58.
Section 2139 of the Revised Statutes provides that every person who disposes of
spirituous liquors to any Indian under the charge of any Indian superintendent or
agent shall be punished, etc. Held, that an Indian of the Nez Perces tribe, a soldier
in the United States Army, is within the meaning of the statute. U. S. ?•. Hursh-
man, 53 Fed. Rep., 543. It is no defense to a prosecution under section 2139 for
introducing spirituous liquors into the Indian country that the United States has
licensed the traffic in such liquors therein. U. S. r. Ellis, 51 ibid. ,'808.
As section 2139 of the Revised Statutes previous to the amendment of July 23,
1892, made punishable the introduction into the Indian country of "spirituous liquor
or wine" only, it did not include lager beer, that being a malt liquor made by fer-
mentation. In re McDonough, 49 ibid., 360; U. S. v. Ellis, 51 ibid., 808, reversed in
Sarlia r. U. S., 152 U. S., 570.
778 MILITARY LAWS OF THE UNITED STATES.
bloods, over whom the Government, through any of its
departments, exercise guardianship, and any person who
shall introduce or attempt to introduce any malt, spiritu-
ous, or vinous liquor, including beer, ale, and wine, or
any ardent or intoxicating liquor of any kind whatsoever
into the Indian country, which term shall include any
Indian allotment while the title to the same shall be held
in trust by the Government, or while the same shall
remain inalienable by the allottee without the consent of
the United States, shall be punished by imprisonment for
not less than sixty days, and by a fine of not less than one
hundred dollars for the first offense and not less than two
hundred dollars for each offense thereafter: Provided,
however, that the person convicted shall be committed
until fine and costs are paid. Act of January 30, 1897
(29 Stat. L.,506).
by^aShSSfy™ 1977< But ^ sha11 be a sufficient defense to any charge
Sent Depart"of introducing or attempting to introduce ardent spirits,
iMd. a]e? beer? wine, or intoxicating liquors into the Indian
country that the acts charged were done under authority,
in writing, from the War Department or any officer duly
authorized thereto by the War Department.1 Ibid.
1978- So much of the act of the twenty -third of July,
eighteen hundred and ninety -two, as is inconsistent with
the provisions of this act is hereby repealed. Sec. 2, ibid.
ar?e°t? trials1 ts; 1979. All complaints for the arrest of any person or
27July26o 189^' v' Persons made for violation of any of the provisions of
this act shall be made in the county where the offense
shall have been committed, or if committed upon or within
1 The Secretary of War has no general authority to license the introduction of
spirituous liquors into the Indian country Under section 2139, Revised Statutes, and
the act of July 23, 1892, chapter 234, amending that section and extending it to beer
and other malt liquors, the Secretary of War is without authority to permit the intro-
duction into that country of any spirituous or malt liquors intended for sale. Dig.
Opin. J. A. G., par. 1500.
Where an enlisted Indian soldier belongs to a tribe which remains "under the
charge of any Indian superintendent or agent," it is an offense under section 2139,
Revised Statutes, to sell him spirituous liquor. Otherwise if he be attached to no
such tribe and is under no such "charge." (a) Ibid., par. 1508.
Held that there was no statute of the United States under which the selling of
spirituous liquor to Indian soldiers (not under the charge of an Indian agent) sta-
tioned on a United States military reservation, by a civilian making the sales off the
reservation, could be punished as an offense. Ibid., par. 1510.
In view of the terms of the act of May 21, 1884, establishing a civil government for
Alaska, held that the military authorities could no longer legally issue permits for the
introduction of liquors into Alaska under G. O. 57 of 1874; section 14 of said act
being deemed impliedly to repeal, as to Alaska, that portion of section 2139, Revised
Statutes, which empowered the Secretary of War to authorize such introduction. (I)
Ibid., par. 1502.
a U. S. v. Hurshman, 53 Fed. Rep., 543. b See U. S.v. Nelson, 29 Fed. Rep. 202.
MILITARY LAWS OF THE UNITED STATES. 779
any reservation not included in any county, then in any
county adjoining such reservation, and if in the Indian
Territory, before the United States court commissioner or
commissioner of the circuit court of the United States
residing nearest the place where the offense was com-
mitted who is not for any reason disqualified; but in all
cases such arrests shall be made before any United States
court commissioner residing in such adjoining county or
before any magistrate or judicial officer authorized by the
laws of the State in which such reservation is located to
issue warrants for the arrest and examination of offenders
by section ten hundred and fourteen of the Revised Stat-
utes of the United States. And all persons so arrested
shall, unless discharged upon examination, be held to
answer and stand trial before the court of the United
States having jurisdiction of the offense. Act of Jidy
23, 1892 (27 Stat. Z., 260).
1980. If any person shall, without the authority of the sales of liquor
. or firearms to In-
U nited btates or some authorized officer thereof, sell dians in Alaska.
T , . ! Mar. 3, 1899, s.
barter, or give to any Indian or half-breed who lives and 142, v. so, p. 1-253.
associates with Indians any firearms or ammunition there-
for whatever, or any spirituous, malt, or vinous liquor,
such person, upon conviction thereof, shall be punished
by imprisonment in the county jail not less than two
months nor more than six months, or by fine not less
than one nor more than five hundred dollars. Sec. 11$+
act of March 3, 1899 (30 Stat. L., 1253}.
1981. Under the license issued in accordance with this Sales of ^quor
in Alaska.
act no intoxicating liquors shall be sold, given, or in any Mar- 3. !*99, s.
J 466, v. 30, p. 1253.
way disposed of to any minor, Indian, or intoxicated per-
son, or to an habitual drunkard. Sec. 486, act of March
3, 1899 (30 Stat. Z., 1853).
1982. That any person, whether an Indian or otherwise. , Punishment
. , *1 I <>'• sale, etc., of
who shall in said Territory manufacture, sell, give away, lkJJJ™j
or in any manner, or by any means furnish to anyone, 28> P- ™i s. «.'
either for himself or another, any vinous, malt, or fer-
mented liquors, or any other intoxicating drinks of any
kind whatsoever, whether medicated or not, or who shall
carry, or in any manner have carried, into sai'd Territory
any such liquors or drinks, or who shall be interested in
such manufacture, sale, giving away, furnishing to any-
one, or carrying into said Territory any of such liquors or
drinks, shall, upon conviction thereof, be punished by fine
not exceeding five hundred dollars and by imprisonment
780 MILITARY LAWS OF THE UNITED STATES.
for not less than one month nor more than live years.1
Sec. 8, act of March 1, 1895 (28 Stat. L., 693.)
1983. If any superintendent of Indian affairs, Indian
ol> subagent, or commanding officer of any military
conceaSdrenfq - P08* *ias reason to suspect or is informed that any white
U(Mar is 1864 c Person or Indian is about to introduce or has introduced
33Amerf Jaipur an^ spirituous liquor or wine into the Indian country in
ckKt>.u.s.,2Pet.t violation of law, such superintendent, agent,, subagent, or
sec. 2140, K.S. commanding officer may cause the boats, stores, packages,
wagons, sleds, and places of deposit of such person to be
searched; and if any such liquor is found therein, the same,
together with the boats, teams, wagons, and sleds used in
conveying the same, and also the goods, packages, and
peltries of such person, shall be seized and delivered to the
proper officer, and shall be proceeded against by libel in
the proper court, and forfeited, one-half to the informer
and the other half to the use of the United States; and if
such person be a trader his license shall be revoked and
his bond put in suit. It shall, moreover, be the duty of
any person in the service of the United States or of any
Indian to take and destroy any ardent spirits or wine
found in the Indian country, except such as may be intro-
duced therein by the War Department. In all cases aris-
ing under this and the preceding section Indians shall be
competent witnesses.2
1(The above statute relates to the Indian Territory, and is for that reason not oper-
ative elsewhere. The act of May 2, 1890 (26 Stat. L., 81, 97), establishing a tempo-
rary government for Oklahoma Territory, confers original jurisdiction upon the
United States court for the Indian Territory to enforce the provisions of Title XXVIII,
chapters three and four of the Revised Statutes, except as to the offenses defined and
embraced in sections 2142 and 2143 of the Revised Statutes. Concurrent jurisdiction
over the offenses defined in section 2139 was conferred upon this court in connection
with the United States courts for the western district of Arkansas and the eastern
district of Texas.
2 The act of July 4, 1884, provides that no part of section twenty-one hundred and
thirty-nine or of section twenty-one hundred and forty of the Revised Statutes shall
be a bar to the prosecution of any officer, soldier, sutler or storekeeper, attach^, or
employee of the Army of the United States who shall barter, donate, or furnish in
any manner whatsoever liquors, wines, beer, or any intoxicating beverage whatso-
soever to any Indian. 23 Stat. L. , 94.
In view of the positive terms of section 2140, Revised Statutes, an officer of the
Army not only may but should "take and destroy any ardent spirits or wine found
in the Indian country except such as may be introduced therein by the War Depart-
ment." The section imposes this as a "duty " upon "any person in the service of
the United States," including, of course, military as well as civil officials. Held, how-
ever, that the authority given by the statute to destroy liquor brought into an Indian
reservation did not authorize the destruction by the military of a building, the pri-
vate property of a citizen, in which the liquor was found stored. Dig. Opin. J. A. ( i . ,
par. 1503.
In view of the duty devolved by section 2140, Revised Statutes, upon * ' any person
in the service of the United States, ' ' to take and destroy spirituous liquors in the
Indian country, held tfiat a post commander in such country who seized and destroyed
a quantity of such liquors introduced into such country without the authority of the
Secretary of War, but not found within the limits of his military command, had not
exceeded his powers. Ibid., par. 1504.
MILITARY LAWS OF THE UNITED STATES. 781
1984. No part of section twenty-one hundred and thirty- go°dfec^rsnot
nine or of section twenty-one hundred and forty of the
Revised Statutes shall be a bar to the prosecution of anJ ^s
officer, soldier, sutler or storekeeper, attache, or employee 23J' 1884> v-
of the Army of the United States who shall barter, donate,
or furnish in any manner whatsoever liquors, wines, beer,
or any intoxicating beverage whatsoever to any Indian.1
Act of July 4, 1884 (23 Stat. L., 94).
1985. P>ery person who shall, within the Indian country,
set up or continue any distillery for manufacturing ardent jn Indian couri-
spirits, shall be liable to a penalty of one thousand dollars; I6l™*$t't^*\
and the superintendent of Indian Affairs, Indian agent, or7gc gm B g
subagent, within the limits of whose agency any distillery
of ardent spirits is set up or continued, shall forthwith
destroy and break up the same.
CRIMES AND CRIMINAL OFFENSES.
Par. I Par.
1986. Forgery; depredations on mails. I 1998. Injuries to property by Indians.
1987. General laws extended to Indian
country.
1988. Exceptions. i 2001. Removal of persons from Indian
1989. ' Indians committing certain offenses j country.
1999. Timber depredations.
2000. Disposal of dead and fallen timber.
2002. Penalty for return.
2003. Removal from reservations.
2004. Employment of military force.
2005. Detention of arrested persons.
2006. Arrest of absconding Indians
charged with crime.
2007. Marshals to execute process.
2008. Execution of process.
2009. Depositions.
2010. Indians not to be permitted to enter
State of Texas.
subject to criminal laws.
1990. Assault; penalty.
1991. Arson.
1992. Rape.
1993. Horse stealing in the Indian Terri-
tory.
1994. Robbery, burglary, offenses
against Indians.
1995. Repealing clause; larceny excepted.
1996. Reparation for injured property.
1997. Payment for injuries to property.
1986. The general laws of the United States
ing and prescribing punishments for forgery and ^^ Mar 3 1855 c
depredations upon the mails shall extend to the Indian ™*' 8- 8' v- 10' P-
COUntry. Sec.2144,R.S.
1987. Except as to crimes the punishment of which is General laws re-
. T . . •. i i ,»i specting crimes
expresslv provided for in this title, the general laws ot the extended to in-
, ^ * , dian country.
I nited States as to the punishment of crimes committed June so, 1334,
.^ . ., , . . . ,. ,. c. 161,s. 25, v.4,p.
in any place within the sole and exclusive jurisdiction of 788; Mar. 27, isw,
the United States, except the District of Columbia, shall 270. U.'s'.r. Rog-
ers, 4 How., 567.
extend to the Indian country. Sec.2i45,R.s.
1 The act of July 4, 1884, declaring that section 2139 of the Revised Statutes shall
not be a bar to the prosecution of any officer, soldier, or employee of the United
States who shall "furnish liquors, wines, beer, or any intoxicating beverage to" any
Indian is not a legislative construction of such section. In re McDonough, 49 Fed.
Rep., 360.
See also for the offense of selling liquor to Indians by licensed dealers in Alaska,
section 460 of the act of March 3, 1899 (30 Stat. L., 1253), paragraph 1980, ante.
782 MILITARY LAWS OF THE UNITED STATES.
S 1988' The preceding section shall not be construed to
section?receding extend to crimes committed by one Indian against the per-
26Msai3,2v.1io!'p; son or Pr°Pei'ty of another Indian, nor to an}^ Indian com-
c^vhsfp.^is: mining any offense in the Indian country who has been
Sec-2146'RtS- punished by the local law of the tribe, or to any case
where, by treaty stipulations, the exclusive jurisdiction
over such offenses is or may be secured to the Indian
tribes, respectively.1
mitntfn|nScerCSfn 1989« That immediately upon and after the date of the
8^6 °f tnis act aU Indians committing against the
a385; Person or property of another Indian or other person any
of the following crimes, namely, murder, manslaughter,
rape,2 assault with intent to kill, arson, burglary, and lar-
ceny within any Territory of the United States, and either
within or without an Indian reservation, shall be subject
therefor to the laws of such Territory relating to said
crimes, and shall be tried therefor in the same courts and
Neither the provisions of the treaty with the Sioux Indians of 1868 (15 Stat. L.,
635), nor the provision embodied in the act of February 28, 1877 (19 Stat. L., 256),
that they "shall be subject to the laws of the United States," nor any other provi-
sion in that agreement or act, operated to repeal the provision of section 2146 of the
Revised Statutes, which excepts from the general jurisdiction of the courts of the
United States over offenses committed in the Indian country, " crimes committed by
one Indian against the person or property of another Indian," and offenses committed
in Indian country by an Indian who has been punished by the local law of the tribe;
and offenses where by treaty stipulation the exclusive jurisdiction over the same
is or may be secured to the Indian tribes, respectively. Ex parte Crow Dos, 109
U. 8., 556.
The United States circuit court has jurisdiction, under section 753, Ee vised Statutes,
to inquire upon habeas corpus whether a member of an Indian tribe, in custody of
State officers for violation of a State statute, is illegally restrained of his liberty in
violation of a treaty with the Indian tribe, by virtue of which such Indian claimed
the right to do the act alleged to be a violation of the State statute. In re Race
Horse, 70 Fed. Rep., 598.
Indians, while prfserving their tribal relations and residing upon a reservation set
apart for them by the United States, are wards of the General Government and as
such the subject of Federal authority, and the power to legislate for them is exclu-
sively in Congress, and for acts committed within the limits of the reservation they
are not subject to the criminal laws of the State. State r. Campbell, 55 N. W. Rep.,
553. Independently of any question of title the Federal courts have jurisdiction, for,
regarding the Indians as wards of the nation, the United States has full power to pass
such laws as may be necessary to their protection and to punish all offenses com-
mitted against them within the limits of the reservation. U. S. v. Thomas, 151
U. S., 577.
Unless otherwise provided by treaty stipulations with an Indian tribe or by the
act admitting the State into the Union, the criminal laws of the State, except so far
as restricted by the authority of Congress, "to regulate commerce with the Indian
tribes," extend to all crimes committed on an Indian reservation by persons other
than tribal Indians. State v. Campbell, 55 N. W. Rep., 553.
The Territorial laws denning crimes and prescribing punishments therefor have no
application to Indian reservations, where Congress has, by special enactment, created
the same offenses and made them punishable under the laws of the United States.
Goodson v. U. S., 54 Pac. Rep., 423.
2 The offense of assault with intent to commit rape, committed by an Indian upon
an Indian woman, both residing upon an Indian reservation, is not cognizable as a
crime by any statute of the United States, and the United States courts have no
jurisdiction of such offense. U. S. r. King, 81 Fed. Rep., 625.
MILITARY LAWS OF THE UNITED STATES. 783
in the same manner and shall be subject to the same pen-
alties as are all other persons charged with the commission
of said crimes, respectively; and the said courts are hereby juSdictionV IS
given jurisdiction in all such cases; and all such Indians a11 such cases-
committing any of the above crimes against the person or
property of another Indian or other person within the
boundaries of any State of the United States, and within
the limits of any Indian reservation, shall be subject to
the same laws, tried in the same courts and in the same
manner, and subject to the same penalties as are all other
persons committing any of the above crimes within the
exclusive jurisdiction of the United States.1 Sec. 9, act
of March 3, 1885 (23 Stat. Z., 385).
1990. Every white person who shall make an assault al^ssault; pen"
upon an Indian, or other person, and every Indian who^^2^1^4^-
shall make an assault upon a white person, within the27^c 2142 BS
Indian country, with a gun, rifle, sword, pistol, knife, or
any other deadly weapon, with intent to kill or maim the
person so assaulted, shall be punishable by imprisonment
at hard labor for not more than five years nor less than
one year.
1991. Every white person who shall set fire, or attempt ^a? 27 ISM c.
to set fire, to any house, outhouse, cabin, stable, or other go s' '*' v' 10) p<
building, in the Indian country, to whomsoever belong- Sec. 21*3, B.S.
ing; and every Indian who shall set fire to any house, out-
house, cabin, stable, or other building, in the Indian coun-
try, in whole or in part belonging to or in lawful possession
of a white person, and whether the same be consumed or
not, shall be punishable by imprisonment, at hard labor
for not more than twenty-one years nor less than two
years.
1 U. S. f. Kagama, 118 U. S., 375; U. S. v. Thomas, 151 U. S.,577; Ex parte Crow
Dog, 109 U. S., 556; In re May field, 141 U. S., 107; Famous Smith v. U. S., 151 U. K,
50. For cases not falling within the scope of the act of March 3, 1885, see 1 Gould
and Tucker, 499, 500; 2 Ibid, 192.
The supreme court of the District of Columbia has jurisdiction of an offense com-
mitted by One Indian upon another Indian when committed outside the Indian
country. In re Wolf, 27 Fed. Rep., 60. The prohibition against the jurisdiction of
the United States courts to try an Indian for an offense committed on another Indian
applies only when the offense is committed in the Indian country. When the
Indian commits a crime outside the Indian country (although that crime may be on
another Indian) he is, like any other person, amenable to the criminal laws of the
place where the crime is committed. Pablo v. People, 46 Pac. Rep., 636.
The power of Congress to regulate the intercourse between the inhabitants of the
United States and the Indian tribes therein is not limited by State lines or govern-
ments, but may be exercised and enforced wherever the subject — Indian tribes —
exists. U. S. v. Bridleman, 7 Fed. Rep., 894; U. S. v. Earl, 17; Ibid, 75. In the
exercise of its constitutional power to regulate intercourse with the Indian tribes,
Congress may define and punish crimes committed by white men upon the person
or property of an Indian, and vice versa, within as well as without the limits of a
State. U. S. v. Martin, 14 Fed. Rep., 817; U. S. r. Renfrew, 41 Pac. Rep., 161.
784 MILITARY LAWS OF THE UNITED STATES.
1897, s. 1992. Any Indian who shall commit the offense of rape
5, v. 29, p. 487. wjthin the limits of any Indian reservation shall be pun-
ished by imprisonment at the discretion of the court. Sec-
tion 5, act of January 15, 1897 (29 Stat. Z., 487).
et?,°rinStiSd"ui 1993. Any person hereafter convicted in the United
TeFeb°ri5, 1888, States courts having jurisdiction over the Indian Territory
or parts .thereof, of stealing any horse, mare, gelding,
filly, foal, ass, or mule, when said theft is committed in
the Indian Territory, shall be punished by a fine of not
Punishment. more than one thousand dollars, or by imprisonment not
more than fifteen years, or by both s.uch fine and imprison -
ment, at the discretion of the court. Act of February 15,
1888(25 Stat. Z., 33).
bu^Sr?3 a"d 1994. Any person hereafter convicted of any robbery
punishment. or burglary in the Indian Territory shall be punished by
a fine of not exceeding one thousand dollars, or imprison-
ment not exceeding fifteen years, or both, at the discretion
sec. 2, ibid. Of the court: Provided, That this act shall not be so con-
indfansS,ee\cUp°n strued as to appty to any offense committed by one Indian
upon the person or property of another Indian, or so as
to repeal any former act in relation to robbing the mails
or robbing any person of property belonging to the United
Pending trials, states: And provided further, That this act shall not
affect or apply to any prosecution now pending, or the
prosecution of an y offense already committed. Section 2,
ibid.
clause1! e larceny 1995. All acts and parts of acts inconsistent with this
exsceecpt3dfluu act are hereby repealed : Provided, Jwwever, That all such
acts and parts of acts shall remain in force for the punish-
ment of all persons who have heretofore been guilty of
the crime of larceny in the Indian Territory. Section 3,
ibid.
tafSSd^o^ 1996. Whenever, in the commission, by a white person,
erjune so, 1834, c. °f anJ crime, offense, or misdemeanor, within the Indian
i6i, s. 16, v. 4, p. country, the property of any friendly Indian is taken,
Sec'2164'K's* injured, or destroyed, and a conviction is had for such
crime, offense, or misdemeanor, the person so convicted
shall be sentenced to pay to such friendly Indian to whom
the property may belong, or whose person may be injured,
a sum equal to twice the just value of the property so taken,
injured, or destroyed.
thea^ffTnde?ei! 1997- If such offender shall be unable to pay a sum at
same*6 to make least equal to the just value or amount, whatever such pay-
iof1?\60'v84!'J:mentshall:fa11 short of the same shall be paid out of the
73sec.2i55,u.s. Treasury of the United States, If such offender can not
MILITARY LAWS OF THE UNITED STATES. 785
be apprehended and brought to trial, the amount of such
property shall be paid out of the Treasury. But no Indian
shall be entitled to any payment out of the Treasury of the
United States for any such property if he, or &ny of the
nation to which he belongs, have sought private revenge,
or have attempted to obtain satisfaction by any force or
violence.
1998. If any Indian, belonging to any tribe in amity with p,4£Jrty *by in-
the United States, shall, within the Indian country, takedij^e30 1834 c
or destroy the property of any person lawfully within such ™\\ Feb'zs iss?'
country, or shall pass from Indian country into any State J^66- s- 8' v- u« P-
or Territory inhabited by citizens of the United States, and Sec'21&<>, B.S.
there take, steal, or destroy, any horse, or other property,
belonging to any citizen or inhabitant of the United States,
such citizen or inhabitant, his representative, attorney, or
agent, may make application to the proper superintendent,
agent, or subagent, who, upon being furnished with the
necessary documents and proofs, shall, under the direction
of the President, make application to the nation or tribe
to which such Indian shall belong, for satisfaction; and if
such nation or tribe shall neglect or refuse to make satis-
faction, in a reasonable time not exceeding twelve months,
such superintendent, agent, or subagent shall make return
of his doings to the Commissioner of Indian Affairs, that
such further steps may be taken as shall be proper, in
the opinion of the President, to obtain satisfaction for the
injury.
1999. Every person who unlawfully cuts, or aids or is .Penalty for
J l J timber depreda-
employ ed in unlawfully cutting, or wantonly destroys or e 4 1888
procures to be wantonly destroyed, any timber standing 25^ ig^ ^
upon the land of the United States which, in pursuance oxf
law, may be reserved or purchased for military or other
purposes, or upon any Indian reservation, or lands belong- l°
ing to or occupied by any tribe of Indians under authority
of the United States, shall pay a fine of not more than five
hundred dollars or be imprisoned not more than twelve
months, or both, in the discretion of the court.1 Act of
June 4, 1888 (25 Stat. Z., 166).
1 The act of June 4, 1888, prohibiting the cutting of timber on Indian lands, is opera-
tive upon the Osage Reservation, and in respect to the Osage Indians. Labadie v.
U. S., 51 Pac. Rep., 666. The act also applies to an Indian sustaining tribal rela-
tions who cuts timber for speculative purposes. Ibid.
Indians occupying reservations, the title to which is in the United States subject
to their occupancy, have no right to cut and remove the dead and fallen timber
thereon for the purpose of sale alone; such timber, where not used by the Indians
for fuel or for agricultural purposes connected with the occupation of the land, being
the property of the United States. XIX Opin. Att. Gen., 194.
22924—08 50
786 MILITARY LAWS OF THE UNITED STATES.
200a The ^resident of the United States may from year
wmbe?nd fallen *° year, in his discretion, under such regulations as he may
25Fpb673'1889'v'Prescr^e> authorize the Indians residing on reservations
or allotments, the fee to which remains in the United
States, to fell, cut, remove, sell, or otherwise dispose of
the dead timber standing or fallen, on such reservation or
allotment, for the sole benefit of such Indian or Indians.
But whenever there is reasonable cause to believe that
such timber has been killed, burned, girdled, or otherwise
injured for the purpose of securing its sale under this act,
then in that case such authority shall not be granted.1
Act of February 16, 1889 (25 Stat. L., 673).
°f 20°1. Tae superintendent of Indian affairs, and the In
'p' dian agents and subagents, shall have authority to remove
78s'ee. 2i47,B.s. ^ rom ^ne Indian country all persons found therein contrary
to law; and the President is authorized to direct the mili
tary force to be employed in such removal.2
tuSnalty for re 2002- H anv Person who has been removed from the In-
i^?'v^?i?'p' dian country shall thereafter at any time return or be found
^Sec. 2i48,R.s. within the Indian country, he shall be liable to a penalty
of one thousand dollars.
1 A contract by an Indian to cut and deliver to a purchaser a certain quantity of
dead timber from a reservation, " more or less," or "about," and which is approved
by the President under the act of February 16, 1889, limits the quantity to which
the purchaser can obtain title thereunder to that stated; allowance being made only
for immaterial and accidental variation. U. S. v. Pine River Logging Co., 90 Fed.
Rep., 907. The timber on Indian reservations belongs to the United States, and,
in the absence of legislative authority, the Indians have no authority to cut or dis-
pose of it. Ibid. The act empowering the President to authorize Indians to cut
and remove from their reservations "dead timber" includes in that designation
trees still living, but vitally injured, so that they will die in a short time, but not
living and uninjured trees merely because they stand among trees' a large proportion
of which are dead. Ibid. It is not unlawful for an Indian having a contract,
approved by the President, to cut and deliver a certain quantity of dead timber from
a reservation, to permit other Indians to cut and deliver timber thereunder in his
name. Ibid.
3 Under section 2147, Revised Statutes, authorizing the use of the military in the
removal from the Indian country of "persons found therein contrary to law," held
that the President was authorized to direct that a company of United States troops
be stationed in the Indian Territory near the Kansas line to act as a patrol, and to
apprehend and return within that line any and all lawless persons, guilty of crimes
committed in Kansas, who have escaped from justice into the Indian country. Dig.
Opin. J. A. G. par. 1505.
Under the Constitution, the acts of Congress, and the regulations adopted by the
Indian department, the power of the Commissioner of Indian Affairs and the agent
acting under him and by his direction in removing any one not a member of an
Indian tribe is a matter intrusted to the discretion of the Commissioner, and is not
reviewable. Adams v. Freeman, 50 Pac. Rep., 135.
An order from a State court restraining an Indian agent from ousting trespassers
from an Indian reservation should be disregarded as without jurisdiction. XX Opin.
Att. Gen., 245.
An Indian agent has no authority forcibly to eject persons from land not within
an Indian reservation, although it is inclosed in allotments made to Indians in fulfill-
ment of a treaty stipulation, and may be restrained by injunction from so ejecting one
who, before such allotment, entered the land as a homestead and made valuable
improvements thereon. La Chapelle v. Bubb, 2 Feel. Rep., 545.
MILITARY LAWS OF THE UNITED STATES. 787
2003. The Commissioner of Indian Affairs is authorized
and required, with the approval of the Secretary of the
Interior, to remove from any tribal reservation any person 33|ec 2i49,R.s.
being therein without authority of law, or whose presence
within the limits of the reservation may, in the judgment
of the Commissioner, be detrimental to the peace and wel-
fare of the Indians; and may employ for the purpose such
force as ma}7 be necessaiy to enable the agent to effect the
removal of such person.
2004. The military forces of the United States may be oft>jf^ynj ££|
employed in such manner and under such regulations as in apprehending
A J ~ t persons violating
the President may direct — jmSao 1334 c
First. In the apprehension of every person who may be16^8-21'23^'*,
in the Indian country in violation of law; and in convey- Sec.2iso,K.s.
ing him immediately from the Indian country, by the near-
est convenient and safe route, to the civil authority of the
Territory or judicial district in which such person shall be
found, to be proceeded against in due course of law;
Second. In the examination and seizure of stores, pack-
ages, and boats, authorized by law;
Third. In preventing the introduction of persons and
property into the Indian country contrary to law; which
persons and property shall be proceeded against according
to law;
Fourth. And also in destroying and breaking up any
distillery for manufacturing ardent spirits set up or con-
tinued within the Indian country.1
1 Under section 2150, Revised Statutes, a military commander may be authorized
and directed by the President to arrest by military force and deliver to the proper
civil authorities for trial any white persons or Indians who may be in the Indian
country engaged in furnishing liquor to Indians in violation of law, as also to pre-
vent by military force the entry into such country of persons designing to introduce
liquor therein contrary to law. Held that this authority to prevent was clearly an
authority to arrest where arrests were found necessary to restrain persons attempting
to introduce liquor or other inhibited property. Dig. Opin. J. A. G., par. 1506.
The troops of the United States can not be employed in the Indian Territory for
the purpose of assisting in the preservation of the peace and the arrest of bandits and
outlaws unless they are trespassing upon Indian country, or absconding offenders
within the provisions of section 2152 of the Revised Statutes. XXI "Opin. Att.
Gen., 72.
Whatever may be the rule in time of war and in the presence of actual hostilities,
military officers can no more protect themselves than civilians for actual wrongs
committed in time of peace under orders emanating from a source which is itself
without authority in the premises. Hence a military officer seizing liquors supposed
to be in Indian country when they are not is liable to an action as a trespasser.
Bates v. Clark, 95 U. S.*, 204.
Officers of the Army making arrests under section 23 of the act of June 30, 1834
(4 Stat. L., 732; sec. 2150, Revised Statutes), act as officers of civil law. To justify
*uch arrests there must be strong probable cause. In re Carr, 3 Sawyer, 316.
The troops of the United States can not be employed in the Indian Territory to
aid in the preservation of the peace and in the arrest of alleged " outlaws " and
"bandits" unless such persons are trespassing, or are absconding offenders within
the provisions of section 2152, Revised Statutes. XXI Opin. Att. Gen., 72,
788 MILITARY LAWS OF THE UNITED STATES.
2<X)5. No person apprehended by military force under the
mmtary.by the preceding section shall be detained longer than five days
lec!li5i^K.s. after arrest and before removal. All officers and soldiers
who may have any such person in custody shall treat him
with all the humanity which the circumstances will permit.
scondtngindiam 2006. Tne superintendents, agents, and subagents shall
gujune°3ofi834?e. endeavor to procure the arrest and trial of all Indians ac-
732' s' 19> v> 4) p> cused of committing any crime, offense, or misdemeanor,
sec.2i52,R.s. an(j of a]| other persons who may have committed crimes
or offenses within any State or Territory, and have fled
into the Indian country, either by demanding the same
of the chiefs of the proper tribe, or by such other means
as the President may authorize. The President may direct
the military force of the United States to be employed in
the apprehension of such Indians, and also in preventing
or terminating hostilities between any of the Indian tribes.1
ecu^rSStai 2007. After the passage of this act any United States
25^pni67%.1888' v' marshal is hereby authorized and required, when necessary
to execute any process connected with any criminal pro-
ceeding issued out of the circuit or district court of the
United States for the district of which he is marshal, or
by any commissioner of either of said courts, to enter the
Indian Territory, and to execute the same therein in the
same manner that he is now required by law to execute
like processes in his own district. Act of June 4, 1988
($5 Stat. Z., 167).
eessxecutingpru 2008. In executing process in the Indian country, the
im!?6^.1!^ marshal may employ a posse comitatus, not exceeding
36Iec. 21&3, R.S. three persons in any of the States respectively, to assist in
executing process by arresting and bringing in prisoners
from the Indian country, and allow them three dollars for
each day in lieu of all expenses and services.
en^sPertcte au 2009. The superintendents, agents, and subagents within
thorized to take their respective districts are authorized and empowered to
depositions. A
/ime 80,i884,c. take depositions of witnesses touching any depredations,
73|ec 2157 R s w^hin the purview of the three preceding sections, and to
administer oaths to the deponents.
lHeld that under section 2152, Revised Statutes, the military forces may, by the
authority of the President, be employed to assist in making the arrest of Indians
concerned in the killing of cattle and committing of depredations on the frontier,
provided their offenses were committed in the Indian country or by Indians under
the legal charge of an Indian agent. Dig. Opin. J. A. G., par. 1507.
Held that in the execution of process of arrest under the act of March 3, 1885 (ren-
dering Indians amenable to the criminal laws of the Territories), the military may,
by direction of the President, legally be employed to aid the civil officials in such
arrests, such employment being expressly authorized by section 2152, Revised Stat-
utes. Ibid., par. 490,
MILITARY LAWS OF THE UNITED STATES. 789
2010. All officers and agents of the Army and Indian
Bureaus are prohibited, except in a case specially directed
by the President, from granting permission in writing or thae8stagt°einof
otherwise to any- Indian or Indians on any reservation to Tes*cS>4, May n,
go into the State of Texas under any pretext whatever ;1880'v-21'p-1
and any officer or agent of the Army or Indian Bureau
who shall violate this provision shall be dismissed from
the public service. And the Secretary of the Interior is
hereby directed and required to take at once such other
reasonable measures as may be necessary in connection
with said prohibition to prevent said Indians from entering
said State. Sec. 4, act of May 11, 1880 (21 Stat. Z.,
THE INDIAN POLICE.
Par.
2011. Purpose of employment.
2012. Preference in appointment to al-
Par.
2013. Crimes against Indian police.
2014. Assault upon United States offi-
lottees. cials.
2011. Pay of Indian police: For the services of not ex- li(£he Indian P°-
ceeding four hundred and thirty privates at five dollars 20Mpay867' 1878> v'
per month each, and not exceeding fifty officers at eight
dollars per month each, of Indian police, to be employed
in maintaining order and prohibiting illegal traffic in
liquor on the several Indian reservations, thirty thousand
dollars: Provided, That Indians employed at agencies in
any capacity shall not be construed as part of agency em-
ployees named in section five of the act making appropri-
ations for the Indian service for the fiscal year eighteen
hundred and seventy-six, approved March third, eighteen
hundred and seventy-five.1 Act of May 27, 1878 (80 Stat.
L., 86).
1 The establishment of Indian police has been authorized by the several acts of
appropriation since that of March 27, 1868 (20 Stat. L. 86). The detachments 'of
this force authorized by the Secretary of the Interior to be maintained at the several
Indian reservations are employed, under the direction of the respective Indian agents,
in the preservation of order and in the execution of the laws relating to the manage-
ment of Indians and the government of the Indian country.
The powers and duties of the Indian police authorized by the act of May 15, 1886,
can not be exercised outside the reservation to which they may be assigned. XVIII
Opin. Att. Gen., 440.
A member of the Indian police is not an officer of the United States within the
meaning of the first clause of section 5398 of the Revised Statutes, imposing a pen-
alty for resisting any officer of the United States in serving a writ or process; but
such police are included among the other persons who may be authorized to serve
writs or process within the last clause of the section. U. S. v. Mullin, 71 Fed. Rep.,
682; in re Garrett, ibid. The written order of an Indian agent, made in pursuance
of the duty of the Government to protect the Indians in the use of their reserva-
790 MILITARY LAWS OF THE UNITED STATES.
m 2012> Hereafter in the employment of Indian police, or
payment of Po- any other employees in the public service among any of the
5^24 8P lm "' Indian tribes or bands affected by this act, and where
Indians can perform the duties required, those Indians
who have availed themselves of the provisions of this act
and become citizens of the United States shall be pre-
ferred. Sec. o, act of February 8, 1887 (24 Stat. L., 390).
crimes against 2013. Immediately upon and after the passage of this
Indian police to . ,.
be tried in dis- act any Indians committing against the person or any
trict courts. J , TT . -,
Mar. 2, 1887, v. Indian policeman appointed under the laws or the United
States, or any Indian United States deputy marshal while
lawfully engaged in the execution of any United States
process, or lawfully engaged in any other duty imposed
upon such policeman or marshal by the laws of the United
States, any of the following crimes, namely, murder, man-
slaughter, or assault with intent to kill, within the Indian
Territory, shall be subject to the laws of the United States
relating to such crimes, and shall be tried by the district
court of the United States exercising criminal jurisdiction
where said offense was committed, and shall be subject to
the same penalties as are all other persons charged with the
commission of said crimes, respectively; and the said courts
are hereby given jurisdiction in all such cases. Act of
March 2, 1887 (®4 Stat. L., 464).
Assault, etc.^ 2014. Any Indian hereafter committing against the per-
ls tat" s officials; son of any Indian agent or policeman appointed under
pTuaniy9, isss, v. the laws of the United States, or against any Indian
United States deputy marshal, posse comitatus, or guard,
while lawfully engaged in the execution of any United
States process, or lawfully engaged in any other duty
imposed upon such agent, policeman, deputy marshal,
posse comitatus, or guard by the laws of the United
States, any of the following crimes, namely, murder, man-
slaughter, or assault with intent to murder, assault, or
assault and battery, or who shall in any manner obstruct
tions, is a legal or judicial writ or process within the meaning of section 5398 of
the Revised Statutes. In re Garrett, 71 ibid., 682.
ALASKA.
AUuska though unorganized as a Territory, and constituting a military department,
is no more under military government or jurisdiction than is any other Territory or
any State of the United States, (a) Dig. Opin. J. A. G., 147, par. 2. For the penal
code of Alaska see act of March 3, 1899 (30 Stat. L., 1253).
a "It is a mistake to suppose that the Territory of Alaska is under military rule anymore than any
other part o ! the country, except as to the introduction of spirituous liquors, and the making of
arrSb ?fo violations of "the existing law regulating their introduction and disposition (see Indian
Country sec. 1, note), in cases of which arrests "the military really act as civil officers and in subor-
j • A- „„ *„ .1.-U n . ;-«»il !«««» »» In t»£i f~*aw Q tia WVPTV 31 R.
V/UU-Ula. j • o^Vy. A, IAVVW/I A*-* x^*^^^ v. ,
dination to the civil law." In re Carr, 3 Sawyer, 318.
MILITARY LAWS OF THE UNITED STATES. 791
by threats or violence any person who is engaged in the
service of the United States in the discharge of any of his
duties as agent, policeman, or other officer aforesaid, within
the Indian Territory, or who shall hereafter commit either
of the crimes aforesaid, in said Indian Territory, against
any person who, at the time of the commission of said
crime, or at any time previous thereto, belonged to either
of the classes of officials hereinbefore named, shall be sub
ject to the laws of the United States relating to such
crimes, and shall be tried by the district court of the Jurisdiction of
TT . , ~ . . district court.
United btates exercising criminal jurisdiction where such
offense was committed, and shall be subject to the same
penalties as are all other persons charged with the com-
mission of said crimes, respectively; and the said courts
are hereby given jurisdiction in all such cases. Act of
June 9, 1888 (25 Stat. Z., 178).
CHAPTER XXXIX.
THE EMPLOYMENT OF MILITARY FORCE.
Par.
2015-2022. Invasion and insurrection.
2023-2028. Employment of troops on In-
dian reservations.
2029-2050. Suspension of intercourse.
2051-2065. Civil rights.
2066, 2067. The elective franchise.
2068. The public health.
2069-2071. The public lands.
2072. Obstructing the mails.
2073. Contracts and combinations in re-
straint of trade.
2074. Northern Pacific Railroad.
2075. Union and Central Pacific Rail-
roads.
Par.
2076. Atlantic and Pacific Railroad.
2077. Southern Pacific Railroad.
2078. Enforcement of law in the Hawaiian
Islands.
2079-2089. Neutrality.
2090-2093. Extradition.
2094-2102. Guano islands.
2103. Restriction on employment of mili-
tary force.
2104-2111. Treason.
2112. The law of war — Military occupa-
tion.
INSURRECTION AND INVASION.
Par.
2015. Power of Congress over the militia.
2016. Insurrections.
2017. Thesame, against the United States.
2018. The same, against a State.
Par.
2019. Proclamation to insurgents.
2020. Invasion.
I 2021. Militia, how apportioned.
! 2022. Militia subject to Articles of War.
Power of Con-
gress over mili-
tia.
Constitution,
art. I, s. 8, p. 15.
Power to sup
press insurrec
tion.
Apr. 20, 1871, c.
2015. The Congress shall have power * * *
To provide for calling forth the militia to execute the
laws of the Union, to suppress insurrections, and repel
invasions.1 Constitution of the United States, Article 7,
section 8, paragraph 15.
2016. Whenever insurrection, domestic violence, unlaw-
^ combinations, or conspiracies in any State so obstructs
.^^ K/S.' or hinders the execution of the laws thereof, and of the
United States, as to deprive any portion or class of the
people of such State of any of the rights, privileges, or
immunities, or protection, named in the Constitution and
secured by the laws for the protection of such rights,
privileges, or immunities, and the constituted authorities
of such State are unable to protect, or, from any cause,
fail in or refuse protection of the people in such rights,
such facts shall be deemed a denial by such State of the
1 For enactments of Congress in pursuance of the authority above conferred see the
chapter entitled THE MILITIA. See also subsequent paragraphs of this chapter.
792
MILITARY LAWS OF THE UNITED STATES. 793
equal protection of the laws to which they are entitled
under the Constitution of the United States; and in all such
cases, or whenever any such insurrection, violence, unlaw-
ful combination or conspiracy, opposes or obstructs the
laws of the United States, or the due execution thereof,
or impedes or obstructs the due course of justice under
the same, it shall be lawful for the President, and it shall
be his duty, to take such measures, by the employment of
the militia or the land and naval forces of the United States,
or of either, or by other means, as he may deem necessary,
for the suppression of such insurrection, domestic violence,
or combinations.1
2017. Whenever, by reason of unlawful obstructions, insurrection
' against the Gov-
combmations, or assemblages of persons, or rebellion eminent of the
.. United States.
against the authority of the Government of the United July 29, ISGI, c.
25, s. 1, V. 12, p.
States, it shall become impracticable, in the judgment of 231.
the President, to enforce, by the ordinary course of judi-
cial proceedings, the laws of the United States within any
State or Territory, it shall be lawful for the President to
call forth the militia of any or all the States, and to employ
such parts of the land and naval forces of the United
States as he may deem necessary to enforce the faithful
execution of the laws of the United States, or to suppress
such rebellion, in whatever State or Territory thereof the
laws of the United States may be forcibly opposed, or the
execution thereof forcibly obstructed.2
1 The power to enforce its laws and to execute its functions in all places does not
derogate from the power of the State to execute its laws at the same time and in the
same places. The one does not exclude the other except where both can not be exe-
cuted at the same time. In that case the words of the Constitution itself show which
is to yield; " this Constitution and the laws of the United States which shall be made
in pursuance thereof; ' : shall be the supreme law of the land."
Although no State could establish and maintain a permanent military government,
yet it may use its military power to put down an armed insurrection too strong to be
controlled by the civil authority. The State must determine for itself what degree
of force the crisis demands. Luther v. Borden, 7 How., 1. See also XVI Opin. 4tt.
Gen., 162. See also note to paragraph 2018, post.
2 The National Government has the right to use physical force in any part of the
United States to compel obedience to its laws, and to carry into execution the powers
Conferred upon it by the Constitution. "We hold it to be an .incontrovertible prin-
ciple that the Government of the United States onay, by means of physical force,
exercised through its official agents, execute on every foot of American soil the powers
and functions that belong to it." Ex parte Siebold, 100 U. S., 371, 395; U. S. v.
Neagle, 135 U. S., 1, 60; Logan v. U. S., 144, U. S., 263, 294; in re Waite, 81 Fed.
Rep., 359; U. S. v. Debs, 164, U. S. 724; U. S. v. Cassidy, 67 Fed. Rep., 698.
An officer who, in the performance of what he conceives to be his official duties,
transcends his authority, and invades private rights, is answerable therefor to the
Government under whose appointment he acts, and to individuals injured by his
action; but where there is no criminal intent, he is not liable to answer the criminal
process of another Government. In re Lewis, 83 Fed. Rep., 159; in re Fair et al. 100,
ibid. 149.
An officer of the Army of the United States whilst serving in the enemy's country
during the rebellion was not liable to an action in the courts of that country for inju-
794 MILITARY LAWS OK THE UNITED STATES.
agSSt "state n 2018< ^n case °* an insurrection in any State against the
36Fs6 1* vYp9424: government thereof, it shall be lawful for the President,
V^'P ^ c< 39> on application of the legislature of such State, or of the
sec. 529" B.S. executive, when the legislature can not be convened, to call
forth such number of the militia of any other State or
States, which m&y be applied for, as he deems sufficient to
suppress such insurrection; or, on like application, to em-
ploy, for the same purposes, such part of the land or nuvul
forces of the United States as he deems necessary.1
to^u?S£ts10to 2019- Whenever, in the judgment of the President, it
disperse. becomes necessary to use the military forces under this
ries resulting from his military orders or acts; nor could he be required by a civil
tribunal to justify or explain them upon any allegation of the injured party thai they
were not justified by military necessity. He was subject to the laws of war, anil
amenable only to his own Government. Dorr v. Johnson, 100 U. S., 158; Luther v.
Borden, 7 Howard, 1, 46.
As a necessary incident of the power to declare and prosecute war, the Federal
Government has a right to transport troops through and over the territory of any
State of the Union. Crandall v. Nevada, 6 Wall. , 35. See also XVI Opin. Att. Gen. ,
162; XVII ibid., 242, 333; XIX ibid., 293, and note to par. 2072, post.
1 Under article 4, section 4, of the Constitution, the Army may be employed to
protect a State from "invasion" or "domestic violence" only by order of the Presi-
dent, made "on application of the legislature, or of theexecutive when the legislat me
can not be convened." A military commander, of whatever rank or command, can
have no authority, except by the order thus made of the President, to furnish troops
to a governor or other functionary of a State, to aid him in making arrests or estab-
lishing law and order. Dig. Opin. J. A. G., par. 483.
The proviso of the Constitution, "when the legislature can not be convened,"
may be said to mean when it is not in session, or can not, by the State law, be assem-
bled forthwith or in time to provide for the emergency. . When it is in session, or
can legally and at once be called together, it will not be lawful for the President to
employ the army on the application merely of the governor. Ibid., par. 484.
VVhere calls are made upon the President, under section 4, article 4, of the Consti-
tution, by two persons, each claiming to be governor of the same State, to protect
the State against domestic violence, it of necessity devolves upon the President to
determine, before giving the required aid, which of such persons is the lawful incum-
bent of the office. XIV Opin. Att Gen., 391; VII ibid., 8; Prize Cases, 2 Black, 97;
Dodge r. Woolsey, 18 Howard, 373; Ex parte Milligan, 4 Wallace, 129.
A military force employed according to article 4, section 4. of the Constitution, is
to remain under the direction and orders of the President as Commander in Chief
and his military subordinates; it can not be placed under the direct orders or exclu-
sive disposition of the governor of the State. Dig. Opin. J. A. G., par. 485.
In all cases of civil disorders or domestic violence it is the duty of the Army to
preserve an attitude of indifference and inaction till ordered to aet by the President,
by the authority of the Constitution or of section 2150, 5297, or 5i^»s, Revised Statutes,
or other public statute. An officer or soldier may, indeed, interfere to arrest a per-
son in the act of committing a crime, or to prevent a breach of the peace in his pres-
ence, but this he does as a citizen and not in his military capacity. Any combined
effort by the military, as such, to make arrests or otherwise prevent breaches of the
peace or violations of law in civil canes, except by the order of the President or the
requirement of a United States official authorized to require their services on a posse
comitatus, must necessarily be illegal. In a case of civil disturbance in violation of
the laws of a State, a military commander can not volunteer to intervene with -his
command without incurring a personal responsibility for his acts. In the absence of
the requisite orders he may not even inarch or array his command for the purpose
of exerting a moral effect or any effect in terrorem; such a demonstration, indeed,
could only compromise the authority of the United States, while insulting the sover-
eignty of the State. Ibid., par. 488.
See also General Orders, No. 26,- Adjutant-General's Office, of 1894 (A. R., 487), for
instructions as to the use of the military force in support of the civil authority.
MILITARY LAWS OF THE UNITED STATES. 795
title, the President shall forthwith, by proclamation, com- 25J^ly229^ ^ c-
mand the insurgents to disperse and retire peaceably to ^^ 6300 B s
their respective abodes, within a limited time.1
2020. Whenever the United States are invaded, or are in orders of Pres-
imminent danger of invasion from any foreign nation or forth mmtianin
Indian tribe, or of rebellion against the authority of the ™c8e °f invasion
Government of the United States, it shall be lawful for
the President to call forth such number of the militia of
the State or States, most convenient to the place of danger, phiia., 259.se> '
or scene of action, as he may deem necessary to repel such lsec-1642'R-s-
invasion, or to suppress such rebellion, and to issue his
orders for that purpose to such officers of the militia as he
may think proper.2
2021. When the militia of more than one State is called Militia, how
into the actual service of the United States by the Pre«i» /Syi7,w82,c.
dent, he shall apportion them among such States according 597! s>
Sec.l643,R.S.
to representative population.
2022. The militia, when called into the actual service of ci|?S} .
the United States for the suppression of rebellion against ^l^2^11^'^
and resistance to the laws of the United States, shall bef^1'^1!6^
subject to the same rules and articles of war as the regular 28£ec 1644 B s
troops of the United States.
1 See XVII Opin. Att. Gen., 333. Section 2 of the act of May 4, 1880 (21 Stat. L.,
113), contained the requirement "that no money appropriated in this act is appro-
priated or shall be paid for the subsistence, equipment, transportation, or compensa-
tion of any portion of the Army of the United States to be used as a police force to
keep the peace at the polls at any election held within any State: Provided, That
nothing in this provision shall be construed to prevent the use of troops to protect
against domestic violence in each of the States on application of the legislature thereof
or of the executive when the legislature can not be convened."
>2The act of February 28, 1795 (1 Stat. L., 424), authorizing the President, under
certain circumstances, to call out the militia, is constitutional, and the President is
the final judge of the emergency justifying such a call. Martin v. Mott, 12 Wheat.,
19. By this act the power of deciding whether the exigency had arisen upon which
the Government of the United States is bound to interfere is given to the President.
He is to act upon the application of the legislature, or of the executive, and conse-
quently he must determine what body of men constitute the legislature, and who is
the governor before he can act. The fact that both parties claim the right to the
government can not alter the case, for both can not be entitled to it. If there is an
armed conflict, like the one of which we are speaking, it is a case of domestic vio-
lence, and one of the parties must be in insurrection against the lawful government.
And the President must, of necessity, decide which is the government, and which
party is unlawfully arraye'd against it, before he can perform the duty imposed upon
him by the act of Congress. Luther v. Borden, 7 How., I, II.
In the case of Houston v. Moore (5 Wheat., 1), it was decided that although a
militiaman who refused to obey the orders of the President calling him into the
public service was not, in the sense of the act of February 28, 1795, "employed in
the service of the United States," so as to be subject to the Rules and Articles of
War, yet that he was liable to be tried for the offense under the fifth section of the
same act, by court-martial called under the authority of the United States. The
great doubt in that case was whether the delinquent was liable to be tried for the
offense by a court-martial organized under State authority. Martin v. Mott, 12
Wheat., 19, 34.
796 MILITARY LAWS OF THE UNITED STATES.
EMPLOYMENT OF TROOPS ON INDIAN RESERVATIONS.
Par.
2023. Eemoval of trespassers.
2024. Penalty for return.
2025. Removal from reservation.
Par.
2026. Employment of military force.
2027. Detention of arrested persons.
2028. Arrest of absconding Indians.
of
m
2023- The superintendent of Indian affairs, and the In-
«oans. reserva dian agents and subagents, shall have authority to remove
w?S?$t'v*tp. f rom tne Indian country l all persons found therein con-
?3sec. 2147, B.S. trarj to law; and the President is authorized to direct the
military force to be employed in such removal.
penalty for re- 2024. If any person who has been removed from the
12^2* Vn6' p. Indian country shall thereafter at any time return or be
^sec. 2i48,B.s. f°und within the Indian country, he shall be liable to a
penalty of one thousand dollars.1
refeer?a°tioLfrom 2025. The Commissioner of Indian Affairs is authorized
IK™ Vv.1?!? p! an(* required, with the approval of the Secretary of the
33s'ec. 2149, u.s. Interior, to remove from any tribal reservation any person
being therein without authority of law, or whose presence,
within the limits of the reservation may, in the judgment
of the Commissioner, be detrimental to the peace and wel-
fare of the Indians; and may employ for the purpose such
force as may be necessary to enable the agent to effect the
removal of such person.
onSFiSry^n 2026- The military forces of the United States may be
persons vioiatinf employed in such manner and under such regulations as
the law. £ne President may direct2—
i6iUsse2i°,'233v'.4'. First. In the apprehension of every person who may be
p'sec'. 2150, B.S. m the Indian country in violation of law; and in convey-
ing him immediately from the Indian country, by the near-
est convenient and safe route, to the civil authority of the
Territory or judicial district in which such person shall be
found to be proceeded against in due course of law;
Second. In the examination and seizure of stores, pack-
ages, and boats, authorized by law;
Third. In preventing the introduction of persons and
property into the Indian country contrary to law; which
persons and property shall be proceeded against according
to law;
1 The definition of the term " Indian country" contained in section 1 of the act of
June 30, 1834 (4 Stat. L., 729), though not incorporated in the Revised Statutes, and
though repealed simultaneously with their enactment, may be referred to in order
to determine what is meant by the term when used in statutes; and it applies to all
the country to which the Indian title has not been extinguished within the limits of
the United States, whether within a reservation or not, and whether acquired before
or since the passage of the act or not. Ex parte Crow Dog, 109 U. S. , 556.
2See U. S. v. Boyd, 83 Fed. Rep., 547; U. S. v. Crook, 5 Dillon, 453, 467.
MILITARY LAWS OF THE UNITED STATES.
797
Fourth. And also in destroying and breaking up any
distillery for manufacturing ardent spirits set up or con-
tinued within the Indian country.
2027. No person apprehended by military force under
the preceding section shall be detained longer than five
days after arrest and before removal. All officers and
soldiers who may have any such person in custody shall
treat him with all the humanity which the circumstances
will permit.1
2028. The superintendents, agents, and sub-agents shall
endeavor to procure the arrest and trial of all
accused of committing any crime, offense, or misdemeanor,
and of all other persons who may have committed crimes
or offenses within any State or Territory, and have fled
into the Indian country, either by demanding the same
of the chiefs of the proper tribe, or by such other means
as the President may authorize. The President may direct
the military force of the United States to be employed in
the apprehension of such Indians, and also in preventing
or terminating hostilities between any of the Indian tribes.2
by the
Sec. 23, ibid.
Sec.2151,B.S.
> s- 19> v- 4> P-
Sec- 2i52,B.s.
SUSPENSION OF INTERCOURSE.
Par.
2029.
2030.
2031.
2032.
2033.
2034.
2035.
2036.
2037.
2038.
2039.
2040.
Suspension of commercial inter-
course.
The same in loyal States.
Extent of prohibition.
The same, licenses to trade.
Appointment of customs officers.
Trading without license.
Investigation of frauds.
Confiscation of property.
Procedure in prosecutions.
Property taken in inland waters.
Procedure in admiralty.
Prohibition on transportation of
goods.
Par.
2041. Prohibition on trade in captured
property.
2042. Change in port of entry.
2043. Removal of custom-house.
2044. Enforcement of preceding sections.
2045. Districts closed to entry.
2046. Vessels in addition to revenue cut-
ters.
2047. Forfeiture of vessels.
2048. Refusal of clearance.
2049. Bond on clearance.
2050. Liens on condemned v<
2029. Whenever the President, in pursuance of the pro-
visions of this Title, has called forth the militia to suppress tejSJ1i3-1861 c
combinations against the laws of the United States, and to f^6' J § Vi?
sause the laws to be duly executed, and the insurgents shall Ps^'5301 B s
1 See, also, for authority to use military force in connection with Indian reserva-
tions and for the protection of Indians, sections 2118, 2147, 2150, 2151, and 2152,
Revised Statutes, and the chapter entitled THE INDIANS, ETC.
2 The officer who makes the arrest can not detain before removal for more than five
days. He must remove or discharge the prisoner, or is liable as a tort feasor for false
imprisonment, but may rearrest. While in military custody the prisoner is a civil
and not a military prisoner, and can not be compelled to labor. The custodian is
liable as a tort feasor for so compelling him. In re John A. Carr, 3 Sawyer, 316;
Waters v. Campbell, 5 ibid., 17.
798 MILITARY LAWS OF THE UNITED STATES.
have failed to disperse by the time directed by the Presi-
dent, and when the insurgents claim to act under the
authority of any State or States, and such claim is not dis-
claimed or repudiated by the persons exercising the func-
tions of government in such State or States, or in the part
or parts thereof in which such combination exists, and such
insurrection is not suppressed by such State or States, or
whenever the inhabitants of any State or part thereof are
at any time found by the President to be in insurrection
against the United States, the President may, by procla-
mation, declare that the inhabitants of such State, or of
any section or part thereof where such insurrection exists,
are in a state of insurrection against the United States;
and thereupon all commercial intercourse by and between
the same and the citizens thereof and the citizens of the
rest of the United States shall cease and be unlawful so
long as such condition of hostility shall continue; and all
goods and chattels, wares and merchandise, coming from
such State or section into the other parts of the United
States, or proceeding from other parts of the United States
to such State or section, by land or water, shall, together
with the vessel or vehicle conveying the same, or conveying
persons to or from such State or section, be forfeited to
the United States.1
ju/y^S^c' 2030> Whenever any part of a State not declared to be
225,8. 5,V. is' p. jn insurrection is under the control of insurgents, or is in
sec.5302,B.s. dangerous proximity to places under their control, all com-
mercial intercourse therein and therewith shall be subject
to the prohibitions and conditions of the preceding section
for such time and to such extent as shall become necessary
to protect the public interests, and be directed by the Sec-
retary of the Treasury, with the approval of the President.
TO whom pro- 2031. The provisions of this Title in relation to commer-
hibition shall ex-
tend, eiai intercourse shall apply to all commercial intercourse
Sec. 4, ibid. r J. . .
Sec.5303,u.s. by and between persons residing or being within districts
within the lines of national military occupation in the
States or parts of States declared in insurrection, whether
with each other or with persons residing or being within
districts declared in insurrection and not within those lines;
and all persons within the United States, not native or
naturalized citizens thereof, shall be subject to the same
'The Reform, 2 Wall., 258; ibid., 3 Wall., 617; U. S. v. Weed, 5 Wall., 62; The
Hampton, 5 Wall., 372; The Ouachita Cotton, 6 Wall., 521; The Venice, 2 Wall., 258;
Cutner r. U. S., 17 Wall., 517.
MILITARY LAWS OF THE UNITED STATES. 799
prohibitions, in all commercial intercourse with inhabitants
of States or parts of States declared in insurrection, as
citizens of States not declared to be in insurrection.
2032. The President may, in his discretion, license and
permit commercial intercourse with any part of such State
or section, the inhabitants of which are so declared in a 3 g
state of insurrection, so far as may be necessary to author-
ize supplying the necessities of loyal persons residing in sec. 5364, B.S.
insurrectionary States, within the lines of actual occupa-
tion by the military forces of the United States, as indi-
cated by published order of the commanding general of
the department or district so occupied; and, also, so far as
may be necessary to authorize persons residing within such
lines to bring or send to market in the loyal States any
products which they shall have produced with their own
laborer the labor of freedmen, or others employed and paid
by them, pursuant to rules relating thereto, which may be
established under proper authority. And no goods, wares,
or merchandise shall be taken into a State declared in
insurrection, or transported therein, except to and from
such places and to such monthly amounts as shall have
been previously agreed upon, in writing, by the command-
ing general of the department in which such places are
situated, and an officer designated by the Secretary of the
Treasury for that purpose. Such commercial intercourse
shall be in such articles and for such time and by such
persons as the President, in his discretion, may think most
conducive to the public interest; and, so far as by him
licensed, shall be conducted and carried on only in pur-
suance of rules and regulations prescribed by the Secretary
of the Treasury.1
2033. The Secretary of the Treasury may appoint such
officers at places where officers of the customs are not
authorized by law as may be needed to carry into
such licenses, rules, and regulations. In all cases where gj« s- 28 v- 13 P-
officers of the customs, or other salaried officers, are ap- Sec. 5305, R.S.
pointed by him to carry into effect such licenses, rules, and
regulations, such officer shall be entitled to receive one
thousand dollars a year for his services, in addition to his
salary or compensation under any other law. But the ag-
gregate compensation of any such officer shall not exceed
the sum of five thousand dollars in any one year.
lrThe Sea Lion, 5 Wall., 630; The Ouachita Cotton, 6 Wall., 521; CoppelH-. Hall, 7
Wall., 542; McKee v. U. S., 8 Wall., 163; U. S. v. Lane, 8 Wall., 185.
800 MILITARY LAWS OF THE UNITED STATES.
™ch~ 2034. Every officer of the United States, civil, military,
225Usyio' v8i3 ' p or nava^ an(l every sutler, soldier, marine, or other person,
3?Sec.5306,K.s. wno ta^es or causes to be taken into a State declared to
be in insurrection, or to any other point to be thence taken
into such State, or who transports or sells, or otherwise
disposes of therein, any goods, wares, or merchandise
whatsoever, except in pursuance of license and authority
of the President, as provided in this title, or who makes
any false statement or representation upon which liccnso
and authority is granted for such transportation, sale, or
other disposition, or who, under any license or authority
obtained, willfully and knowingly transports, sells, or other-
wise disposes of any other goods, wares, or merchandise
than such as are in good faith so licensed and authorized,
or who willfully and knowingly transports, sells, or dis-
poses of the same, or any portion thereof, in violation of
the terms of such license or authority, or of any rule or
regulation prescribed by the Secretary of the Treasury
concerning the same, or who is guilt}^ of any act of embez-
zlement, of willful misappropriation of public or private
money or property, of keeping false accounts, or of will-
fully making any false returns, shall be deemed guilty of
a misdemeanor, and shall be fined not more than five thou-
sand dollars, and imprisoned in the penitentiary not more
than three years. Violations of this section shall be cog-
nizable before any court, civil or military, competent to
try the same.
todoSrtSS 2035- Ii: sha11 be the duty of the Secretary of the Treas-
Sec?5307,R.s. U1T? from time to time, to institute such investigations as
may be necessary to detect and prevent frauds and abuses
in any trade or transactions which may be licensed between
inhabitants of loyal States and of States in insurrection.
And the agents making such investigations shall have
power to compel the attendance of witnesses, and to make
examinations on oath.
confiscation of 2036. Whenever during any insurrection against the
ployed L^id^f Government of the United States, after the President shall
Aug. 6, ]86i,c. have declared by proclamation that the laws of the United
319. States are opposed, and the execution thereof obstructed.
Sec. 5308, R. S. , ,. *.L £ , , , , , ,,
by combinations too powerful to be suppressed by the ordi-
nary course of judicial proceedings, or by the power vested
in the marshals by law, any person, or his agent, attor-
ney, or employe, purchases or acquires, sells or gives, any
property of whatsoever kind or description, with intent to
use or employ the same, or suffers the same to be used or
MILITARY LAWS OF THE UNITED STATES. 801
employed in aiding, abetting, or promoting such insurrec-
tion or resistance to the laws, or any person engaged therein;
or being the owner of any such property, knowingly uses
or employs, or consents to such use or employment of the
same, all such property shall be lawful subject of prize
and capture wherever found; and it shall be the duty of
the President to cause the same to be seized, confiscated,
and condemned.1
2037. Such prizes and capture shall be condemned in the where hid !ugs'
district or circuit court of the United States having jUTO-ap^^V1^^
diction of the amount, or in admiralty in any district in c^.^wfp^l&s!
which the same [may] be seized, or into which they may be Sec-6309>B-s-
taken and proceedings first instituted.
2038. No property seized or taken upon any of the inland onfffa^dVate??
waters of the United States by the naval forces thereof 9JU}J2' X18% c-
ZZO, S. /, V. Id, p.
shall be regarded as maritime prize; but all property so 37£ec5310 ^^
seized or taken shall be promptly delivered to the proper
officers of the courts.
2039. The Attorney-General, or the attorney of the U nited ilJ?J1a?n£elS."
States far any judicial district in which such property may Stljjj^d6 1861 c
at the time be, may institute the proceedings of condemna- ^s- 3- v- 12» P-
tion, and in such case they shall be wholly for the benefit sec.53ii,R.s.
of the United States; or any person may file an informa-
tion with such attorney, in which case the proceedings
shall be for the use of such informer and the United States
in equal parts.2
2040. The Secretary of the Treasury is authorized to pro-
hibit and prevent the transportation in any vessel, or upon
any railroad, turnpike, or other road or means of trans- 01 M&y 20» l8®?, c.
ol, S. o, V. U, p.
portation within the United States, of any property, what- 40|-ec 5312 K g
ever may be the ostensible destination of the same, in all
cases where there are satisfactory reasons to believe that
such property is intended for any place in the possession
or under the control of insurgents against the United States,
or that there is imminent danger that such property will
fall into the possession or under the control of such insur-
gents; and he is further authorized, in all cases where he
deems it expedient so to do, to require reasonable security
to be given that property shall not be transported to any
place under insurrectionary control, and shall not, in any
way, be used to give aid or comfort to such insurgents;
1Mrs. Alexander's Cotton, 2 Wall., 404; Union Ins. Co. v. U. S., 6 Wall., 759; Arm-
strong's Foundry, 6 Wall., 766; Morris's Cotton, 8 Wall., 507; U. S. v. Shares of Capital
8tock,5Blatch.,23l.
2 Francis?;. U. S., 5 Wall., 338; Confiscation Cases, 7 Wall., 454; Millers U. S., 11
Wall., 268; Tyler v. Defrees, 11 Wall., 331.
22924—08 51
802 MILITARY LAWS OF THE UNITED STATES.
and he may establish all such general or special regulations
as may be necessary or proper to carry into effect the pur-
poses of this section; and if any property is transported in
violation of this act, or of any regulation of the Secretary
of the Treasury, established in pursuance thereof, or if any
attempt shall be made so to transport any, it shall be
forfeited.1
wo™ tradei0i£ 2041' A11 persons in the military or naval service of the
aba^done<?propJ United States are prohibited from buying or selling, trading,
erjuiy 2, 1864, c. or in anv wa^ dealing in captured or abandoned property,
326, s. 10, v. 13, p. whereby they shall receive or expect any profit, benefit, or
sec. 5318, B. s. advantage to themselves, or any other person, directly or
indirectly connected with them; and it shall be the duty
of such person whenever such property comes into his pos-
session or custody, or within his control, to give notice
thereof to some agent, appointed by virtue of this Title,
and to turn the same over to such agent without delay.
Any officer of the United States, civil, military, or naval,
or any sutler, soldier, or marine, or other person who
shall violate any provision of this section, shall be'deemed
guilty of a misdemeanor, and shall be fined not more than
five thousand dollars, and imprisoned in the penitentiary
not more than three years. Violations of this section
shall be cognizable before any court, civil or military,
competent to try the same.
of°ehnat?yeiSf?asre 2042> Whenever the President shall deem it impracti-
°fjuiTi3ri86i°c' ca^e? ^7 reason of unlawful combinations of persons in
l.' opposition to the laws of the United States, to collect the
duties on imports in the ordinary way, at any port of entry
in any collection district, he may cause such duties to be
collected at any port of delivery in the district until such
obstruction ceases; in such case the surveyor at such port
of delivery shall have the powers and be subject to all the
obligations of a collector at a port of entry. The Secretary
of the Treasury, with the approval of the President, shall
also appoint such weighers, gaugers, measurers, inspectors,
appraisers, and clerks as he may deem necessary, for the
faithful execution of the revenue laws at such port of
delivery, and shall establish the limits within which such
port of delivery is constituted a port of entry. And all the
provisions of law regulating the issue of marine papers,
the coasting trade, the warehousing of imports, and the
collection of duties, shall apply to the ports of entry thus
constituted, in the same manner as they do to ports of
entry established by law.
1 Gay's Gold, 13 Wall., 358.
MILITARY LAWS OF THE UNITED STATES. 803
2043. Whenever, at any port of entry, the. duties on im-
ports can not, in the judgment of the President, be collected 25|ec- 2> *id-' p-
in the ordinary way, or by the course provided in the pre- ^sV^is' p'
ceding section, by reason of the cause mentioned therein, 46|ec.53i5,B.s.
he may direct that the custom-house for the district be
established in any secure place within the district, either
on land or on board any vessel in the district, or at sea near
the coast; and in such case the collector shall reside at
such place, or on shipboard, as the case ma}^ be, and there
detain all vessels and cargoes arriving within or approach-
ing the district, until the duties imposed bj law on such
vessels and their cargoes are paid in cash. But if the
owner or consignee of the cargo on board any vessel thus
detained, or the master of the vessel, desires to enter a port
of entry in any other district where no such obstructions
to the execution of the laws exist, the master may be per-
mitted so to change the destination of the vessel and cargo
in his manifest; whereupon the collector shall deliver him
a written permit to proceed to the port so designated. And
the Secretary of the Treasury, with the approval of the
President, shall make proper regulations for the enforce-
ment on shipboard of such provisions of the laws regu-
lating the assessment and collection of duties as in his
judgment may be necessary and practicable.
2044. It shall be unlawful to take anv vessel or cargo Enforcement
fe of preceding sec-
detained under the preceding section from the custody of fl«jg-
the proper officers of the customs, unless by process of some 3> |3> P'
court of the United States; and in case of any attempt
otherwise to take such vessel or cargo by any force, or com-
bination, or assemblage of persons, too great to be overcome
by the officers of the customs, the President, or such person
as he shall have empowered for that purpose, may employ
such part of the Army or Navy or militia of the United
States, or such force of citizen volunteers as may be neces-
sary, to prevent the removal of such vessel or cargo, and
to protect the officers of the customs in retaining the cus-
tody thereof.
2045. Whenever, in any collection district, the duties on clEgg^irt^
imports can not, in the judgment of the President, be col- ^-^^ s
lected in the ordinary way, nor in the manner provided by
the three preceding sections, by reason of the cause men-
tioned in section fifty-three hundred and fourteen [Rev.
Stat.],1 the President may close the port of entry in that
district; and shall in such case give notice thereof b}^ proc-
1 Paragraph 2042, ante.
804 MILITARY LAWS OF THE UNITED STATES.
lamation. And thereupon all right of importation, ware-
housing, and other privileges incident to ports of entry
shall cease and be discontinued at such port so closed until
it is opened by the order of the President on the cessation
of such obstructions. Ever}^ vessel from beyond the United
States, or having on board any merchandise liable to duty,
which attempts to enter any port which has been closed
under this section, shall, with her tackle, apparel, furni-
ture, and cargo, be forfeited.
ditionetoinreve- 2046> ^n tne execution of laws providing for the col-
^ec^on °^ duties on imports and tonnage, the President,
ln Edition to the revenue cutters in service, may employ
in aid thereof such other suitable vessels as may, in his
judgment, be required.
2047> From and af ter fifteen days after the issuing of the
as Pr°vided in section fifty-three hundred
St?&3' an(^ one [Rev- Stat.],1 any vessel belonging in whole or in
Sec.53i9,B.s. part to any citizen or inhabitant of such State or part of
a State whose inhabitants are so declared in a state of
insurrection, found at sea, or in an}^ port of the rest of the
United States, shall be forfeited.2
ci?aranuc!tove°s- 2048> The Secretary of the Treasury is authorized to
lus ecatednmVerh re^use a clearance to any vessel or other vehicle laden with
^May^o 1862 c merchandise, destined for a foreign or domestic port, when-
si^s. i, v. 12, p. ever ne snall have satisfactory reason to believe that such
Sec-53%20'K-s- merchandise, or any part thereof, whatever may be its
ostensible destination, is intended for ports in possession
or under control of insurgents against the United States;
and if any vessel for which a clearance or permit has been
refused by the Secretary of the Treasury, or by his order,
shall depart or attempt to depart for a foreign or domestic
port without being duly cleared or permitted, such vessel,
with her tackle, apparel, furniture, and cargo, shall be
forfeited.
Bond upon 2049. Whenever a permit or clearance is granted for
sec. 2, ibid, either a foreign or domestic port, it shall be lawful for the
Sec. 53*21, B.S. r.
collector of the customs granting the same, if he deems it
necessary, under the circumstances of the case, to require
a bond to be executed by the master or the owner of the
vessel, in a penalty equal to the value of the cargo, and
with sureties to* the satisfaction of such collector, that the
cargo shall be delivered at the destination for which it is
cleared or permitted, and that no part thereof shall be used
Paragraph 2029, ante. 2The Schooner Keeling, Blatch. Pr. Cas., 92.
MILITARY LAWS OF THE UNITED STATES.
805
See. 0822, B.S.
in affording- aid or comfort to any person or parties in
insurrection against the authority of the United States.
2050. In all cases wherein any vessel, or other property, demnld veSsn'
is condemned in any proceeding by virtue of any laws
relating to insurrection or rebellion, the court rendering
judgment of condemnation shall, notwithstanding such
condemnation, and before awarding such vessel, or other
property, or the proceeds thereof, to the United States, or
to any informer, first provide for the payment, out of the
proceeds of such vessel, or other property, of any bona-
fide claims which shall be filed by any loyal citizen of the
United States, or of any foreign state or power at peace
and amity with the United States, intervening in such pro-
ceeding, and which shall be duly established by evidence
as a valid claim against such vessel, or other property,
under the laws of the United States or any State thereof
not declared to be in insurrection. No such claim shall be
allowed in any case where the claimant has knowingly
participated in the illegal use of such ship, vessel, or other
property. This section shall extend to such claims only as
might have been enforced specifically against such vessel,
or other property, in any State not declared to be in insur-
rection, wherein such claim arose.1
CIVIL RIGHTS.
Par.
2059. Marshals to obey precepts.
2060. District attorneys, fees.
2061. Execution of process, fees.
2062. Speedy trial.
2063. Aid of military force.
2064. Peonage abolished in New Mexico.
2065. The same, enforcement.
Par.
2051. Equal rights under the law.
2052. Property rights of citizens.
2053. Civil action for deprivation of rights.
2054. Conspiracy.
2055. Action to prevent conspiracy.
2056. District attorney to prosecute.
2057. Commissioners.
2058 Execution of warrants.
2051. All persons within the jurisdiction of the United
States shall have the same right in every State and Terri-
tory to make and enforce contracts, to sue, be parties, give J44j1tasr'>v*it'
evidence, and to the full and equal benefit of all laws andP-|^-1977 B g>
proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like pun-
ishment, pains, penalties, taxes, licenses, and exactions of
eveiy kind, and to no other.
'The Hampton, 5 Wall., 372.
806 MILITARY LAWS OF THE UNITED STATES.
2052- A11 citizens of the United States shall have the
prope?tdypersonal same "g^t, in every State and Territory, as is enjoyed by
3ifsp£?:i4?p.'27: white citizens thereof to inherit, purchase, lease, sell, hold,
Sec. 1978, R.S. anj convev rea| an(j personal property.
deCpVHvaationfSf 2053« Every person who, under color of any statute,
ri^;201871 c ordinance, regulation, custom, or usage, of any State or
22se'c1.'i971^Pi.1|.'^err^ory9 subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
juiny83M86i,c. 2054- First- If two or more persons in any State or Ter-
APrV'202,' i87i2^c.; ritory conspire to prevent, by force, intimidation, or threat,
MarAT'isVi'1*!8111^ Person from accepting or holding any office, trust, or
336. s' 2> v' 18) P' place of confidence under the United States, or from dis-
Sec*1980'K*s* charging any duties thereof ; or to induce by like means
any officer of the United States to leave any State, district,
or place, where his duties as an officer are required to be
performed, or to injure him in his person or property on
account of his lawful discharge of the duties of his office,
or while engaged in the lawful discharge thereof, or to
injure his property so as to molest, interrupt, hinder, or
impede him in the discharge of his official duties;
Second. If two or more persons in any State or Territory
conspire to deter, -by force, intimidation, or threat, any
party or witness in any court of the United States from
attending such court, or from testifying to any matter
pending therein, freely, fully, and truthfully, or to injure
such party or witness in his person or property on account
of his having so attended or testified, or to influence the
verdict, presentment, or indictment of any grand or petit
juror in any such court, or to injure such juror in his per-
son or property on account of any verdict, presentment, or
indictment lawfully assented to by him, or of his being or
having been such juror; or if two or more persons conspire
for the purpose of impeding, hindering, obstructing, or
defeating, in any manner, the due course of justice in any
State or Territory, with intent to deny to any citizen the
equal protection of the laws, or to injure him or his prop-
erty for lawfully enforcing, or attempting to enforce, the
right of any person, or class of persons, to the equal pro-
tection of the laws ;
Third. If two or more persons in any State or Territory
conspire, or go in disguise on the highway or on the prem-
MILITARY LAWS OF THE UNITED STATES. 807
ises of another, for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; or for the purpose of preventing or hinder-
ing the constituted authorities of any State or Territory
from giving or securing to all persons within such State or
Territory the equal protection of the laws; or if two or
more persons conspire to prevent by force, intimidation,
or threat, any citizen who is lawfully entitled to vote, from
giving his support or advocacy in a legal manner, toward
or in favor of the election of any lawfully qualified person
as an elector for President or Vice-President, or as a mem-
ber of Congress of the United States ; or to injure any
citizen in person or property on account of such support
or advocacy; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause
to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or
proper t}^, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so
injured or deprived may have an action for the recovery
of damages, occasioned by such injuiy or deprivation,
against any one or more of the conspirators.
2055. Every person who, having knowledge that any of ie^ctton prevent
the wrongs conspired to be done, and mentioned in the c°Ap?!r2o? ISTI, c.
preceding section, are about to be committed, and having
power to prevent or aid in preventing the commission of
the same, neglects or refuses so to do, if such wrongful
act be committed, shall be liable to the party injured or
his legal representatives, for all damages caused by such
wrongful act, which such person by reasonable diligence
could have prevented; and such damages may be recov-
ered in an action on the case; 'and any number of persons
guilty of such wrongful neglect or refusal may be joined
as defendants in the action; and if the death of any party
be caused by any such wrongful act and neglect, tne legal
representatives of the deceased shall have such action
therefor, and may recover not exceeding five thousand
dollars damages therein, for the benefit of the widow of
the deceased, if there be one, and if there be no widow,
then for the benefit of the next of kin of the deceased.
But no action under the provisions of this section shall
be sustained which is not commenced within one year
after the cause of action has accrued.
808 MILITARY LAWS OF THE UNITED STATES.
2056- The district attorneys, marshals, and deputy mar-
eCAper. 9, 1866, c. snaH tne commissioners appointed by the circuit and
Is'; Mayli,1i87o,^err^or^a^ coul'ts, with power to arrest, imprison, or bail
P. 142. s' 9> v> 16> offenders, and every other officer who is especially em-
Sec.i982,K.s. powered by the President, are authorized and required, at
the expense of the United States, to institute prosecutions
against all persons violating any of the provisions of
/ chapter seven of the Title " CRIMES," and to cause such
persons to be arrested, and imprisoned or bailed, for trial
before the court of the United States or the Territorial
court having cognizance of the offense.
Commission- 2057. The circuit courts of the United States and the
i3fspr4,9V.18i4!' pi district courts of the Territories, from time to time, shall
c?;iJ?,as.89,' v18i6| increase the number of commissioners, so as to afford a
p Sec2.' 1988, R.S. speedy and convenient means for the arrest and examina-
tion of persons charged with the crimes referred to in the
preceding section ; and such commissioners are authorized
and required to exercise all the powers and duties con-
ferred on them herein with regard to such offenses in like
manner as they are authorized by law to exercise with
regard to other offenses against the laws of the United
States.
po!ntepeSonsato 2058. The commissioners authorized to be appointed by
rants3 etc6 war the preceding section are empowered, within their respec-
3iAspr5 9v.18w,' pi tive counties, to appoint, in writing, under their hands,
c8:ii4,al 10,' v8i6| one or more suitable persons, from time to time, who shall
p'sec.' 1984, u.s. execute all such warrants or other process as the commis-
sioners may issue in the lawful performance of their duties,
and the persons so appointed shall have authority to sum-
mon and call to their aid the bystanders or posse comitatus
of the proper county, or such portion of the land or naval
forces of the United States, or of the militia, as may be
necessary to the performance of the duty with which they
are charged; and such warrants shall run and be executed
anywhere in the State or Territory within which they are
issued.
oAapr£?epts° 2059- Every marshal and deputy marshal shall obey and
ctc- execute all warrants or other process, when directed to
3if P.r5,9v18i4,' £ hi01? issued under the provisions hereof.
Sec. 1985, R'.S. 28; May 31, 1870, c. 114, s. 10, v. 16, p. 142.
attornseyf et?rict 2060> Tne district attorneys, marshals, their deputies,
Apr. 9,' 1866, c. and the clerks of the courts of the United States and Ter-
ol, S. 7, V. 14, p.
, ,
nays3i2 v8i6 c ritorial courts shall be paid for their services, in cases
14iec 1986 B s under the foregoing provisions, the same fees as are allowed
to them for like services in other cases; and where the
MILITARY LAWS OF THE UNITED STATES. 809
proceedings are before a commissioner he shall be entitled
to a fee of ten dollars for his services in each case, inclusive
of all services incident to the arrest and examination.
2061. Every person appointed to execute process under po?ntedru)USexe-
section nineteen hundred and eighty-four [Rev. Stat.] * shall ^pf.Ti&xfc:
be entitled to a fee of five dollars for each party he may Say V.'isVo,'2?!
arrest and take before the commissioner, with such other \\%' s- 12) v- 16> p-
fees as may be deemed reasonable by the commissioner for Sec- 1987' B- s-
any additional services necessarily performed by him, such
as attending at the examination, keeping the prisoner in
custody, and providing him with food and lodging during
his detention, and until the final determination of the com-
missioner; such fees to be made up in conformity with the
fees usually charged by the officers of the courts of justice
within the proper district or county, as near as may be
practicable, and paid out of the Treasury of the United
States on the certificate of the judge of the district within
which the arrest is made, and to be recoverable from the
defendant as part of the judgment in case of conviction.
2062. Whenever the President has reason to believe that |Peredy trial. ^
offenses have been or are likely to be committed against the 3^-8',il4' £•''!?•
• « a a rrv i * SCC» Iwoo, K. a.
provisions of chapter seven of the Title CRIMES, within
any judicial district, it shall be lawful for him, in his discre-
tion, to direct the judge, marshal, and district attorney of
such district to attend at such place within the district,
and for such time, as he may designate, for the purpose of
the more speedy arrest and trial of persons so charged,
and it shall be the duty of every judge or other officer,
when any such requisition is received by him, to attend at
the place and for the time therein designated.
2063. It shall be lawful for the President of the United ta^ida°^hen™£
States, or such person as he may empower for that pur- f°Apr' s isee c
pose, to employ such part of the land or naval forces of Say93i'1i87o'2c;
the United States, or of the militia, as may be necessary to J^; s- 13) v- ]6> p-
aid in the execution of judicial process issued under any of Sec* 1989' B* s*
the preceding provisions, or as shall be necessary to prevent
the violation and enforce the due execution of the provi-
sions of this Title.2
2064. The holding of any person to service or labor under is^n&ge abol~
the system known as peonage is abolished and forever pro- l8^lT\\l8fl' £
hibited in the Territory of New Mexico, or in any other M^c 1990 B Si
Territory or State of the United States; and all acts, laws,
1 Paragraph 2058, ante.
2 This power is not repealed or abridged by the posse comitatus act (act of June 18,
1878, 20 Stat. L., 152). XIX Opin. Att. Gen., 570.
810 MILITARY LAWS OF THE UNITED STATES.
resolutions, orders, regulations, or usages of the Territory
of New Mexico, or of any other Territory or State, which
have heretofore established, maintained, or enforced, or
by virtue of which any attempt shall hereafter be made to
establish, maintain, or enforce, directly or indirectly, the
voluntary or involuntary service or labor of any persons
as peons, in liquidation of any debt or obligation, or other-
wise, are declared null and void.
tio°neghon|seen: 2065« Every person in the military or civil service in
f°Mar.'2, 186? c ^ne Territory of New Mexico shall aid in the enforcement
the preceding section.
THE ELECTIVE FRANCHISE.
2066- No officer ot> the Army or Navy of the United
States shall prescribe or fix or attempt to prescribe or fix
N Feb. 25, 1865, c. by proclamation, order, or otherwise the qualifications of
43?.s' l' v' 13' p voters in any State, or in any manner interfere with the
Sec. 2003, K. s. freedom of any election in any State or with the exercise
of the free right of suffrage in any State.
Pr?vfoeusCOc°ond°- 2067> A11 citizens of tne United States who are other-
uaked by law to vote at any election by the people
anv State, Territory, district, county, city, parish,
14s'ec 2004 R s township, school district, municipality, or other terri-
torial subdivision shall be entitled and allowed to vote at
all such elections without distinction of race, color, or
previous condition of servitude, any constitution, law,
custom, usage, or regulation of any State or Territory or
\ by or under its authority to the contrary notwithstand-
ing.1
THE PUBLIC HEALTH.
2068- Tlie quarantines and other restraints established
servedby united ^v the ^ealth laws of any State respecting any vessels
states officers, arrjvmg m or bounci to any port or district thereof shall
i2Fse i| vVpJeiS; be duly observed by the officers of the customs revenue of
sec. 4792, B.s. faQ United States, by the masters and crews of the several
revenue cutters, and by the military officers commanding
in any fort or station upon the seacoast; and all such offi-
cers of the United States shall faithfully siid in the execu-
tion of such quarantines and health laws according to their
respective powers and within their respective precincts,
1 Sections 2002 and 2005-2031, inclusive, of the Ke vised Statutes were repealed by
the act of February 8, 1894 (28 Stat. L., 36). 2 Abb. U. S., 120; McKay v. Camp-
bell, 1 Saw., 374; U. S. v. Reese et al., 92 U. S., 214; U. S. v. Cruikshank et al., 92
U. S., 542.
MILITARY LAWS OF THE UNITED STATES. 811
and as they shall be directed from time to time by the
Secretary of the Treasury. But nothing in this Title shall
enable any State to collect a duty of tonnage or impost
without the consent of Congress.1
THE PUBLIC LANDS.
2069. The President is authorized to employ so much of
the land and naval forces of the United States as may be
necessary effectually to prevent the felling, cutting down, Sec- 2460>B-S-
or other destruction of the timber of the United States in
Florida^ and to prevent the transportation or carrying
away any such timber as may be already felled or cut
down; and to take such other and further measures as may
be deemed advisable for the preservation of the timber of
the United States in Florida.
2070. The President is hereby authorized to take such I.I*cl1os"re of
public lands.
measures as shall be necessary to remove and destroy any 5 ^g25' ^ s-
unlawful inclosures of any of said [public] lands, and to
employ civil or military force as may be necessary for
that purpose.2 Sec. 5. act of February 25, 1885 (23 Stat.
Z., 322).
2071. That if any person or persons shall, after the pass- tn|e^°rsal °f
ing of this act, take possession of, or make a settlement on lg^ *. 2M&T^
any lands ceded or secured to the United States, by any
treaty made with a foreign nation, or by a cession from
any State to the United States, which lands shall not have
been previously sold, ceded, or leased by the United States,
or the claim to which lands, by such person or persons,
shall not have been previously recognized and confirmed
by the United States; or if any person or persons shall
cause such lands to be thus occupied, taken possession of,
or settled; or shall survey, or attempt to survey, or cause
to be surveyed, any such lands; or designate any bound-
aries thereon, by marking trees, or otherwise, until thereto
duly authorized by law ; such offender or offenders, shall
forfeit all his or their right, title, and claim, if any he hath,
or they have, of whatsoever nature or kind the same shall
or may be, to the lands aforesaid, which he or they shall
have taken possession of, or settled, or cause to be occu-
1 Gibbons v. Ogden, 9 Wh., 1; Passenger Cases, 7 How., 406.
2 This statute appears as section 5 of the act of February 25, 1885 (23 Stat. L., 322),
entitled "An aot to prevent unlawful occupancy of the public lands." See Campbell
v. U. S., 66 Fed. Rep., 101; XVIII, Opin. Att. Gen., 434. There is no implied license
to use for pasture purposes public lands reserved for the preservation of forests to
the destruction or injury of such forests. U. S. v. Tygh Valley Land and Live Stock
Co., 76 Fed. Rep., 693.
812 MILITARY LAWS OF THE UNITED STATES.
pied, taken possession of, or settled, or which he or they
shall haye surveyed, or attempt to survey, or cause to be
surveyed, or the boundaries thereof he or they shall have
designated, or cause to be designated, by marking trees or
otherwise. And it shall moreover be lawful for the Presi-
dent of the United States, to direct the marshal, or officer
acting as marshal, in the manner hereinafter directed, and
also to take such other measures, and to employ such mili-
tary force as he may judge necessary and proper, to remove
from lands ceded, or secured to the United States, by treaty,
or cession as aforesaid, any person or persons who shall
hereafter take possession of the same, or make, or attempt
to make, a settlement thereon, until thereunto authorized
by law. * * * Sec. 1, act of March 3, 1807 (2 Stat. L. ,
US),
OBSTRUCTING THE MAILS.
th^maihplnaf ' 2072- AnJ person who shall knowingly and willfully ob-
tyjune s, 1872, c. struct or retard the passage of the mail, or any carriage,
33|s.24i,v.i7,p horse, driver, or carrier carrying the same, shall, for every
sec. 3995,B.s. suc]1 Offen8e? ke punishable by a fine of not more than one
hundred dollars.1
CONTRACTS AND COMBINATIONS IN RESTRAINT OF TRADE.
the^St'es^inre1- 2073. Every contract, combination in the form of trust
etca!megaitrade> or otherwise, or conspiracy, in restraint of trade or com-
of merce among the several States, or with foreign nations,
v. is ^reby declared to be illegal. Every person who shall
26, p. 209. make any such contract or engage in any such combination
or conspiracy, shall be deemed guilty of a misdemeanor,
penalty. and, on conviction thereof, shall be punished by fine not
exceeding five thousand dollars, or by imprisonment not
exceeding one year, or by both said punishments, in the
discretion of the court.
tem6 tin0 "to mo^ ^EC* ^" ^very Person wno shall monopolize, or attempt
nuiFtolof misde' ^° mon°P°^ze^ or combine or conspire with any other per-
meanor. son or persons, to monopolize any part of the trade or com-
merce among the several States, or with foreign nations,
shall be deemed guilty of a misdemeanor, and, on con vie -
Penaity. ^ion thereof, shall be punished by fine not exceeding five
1 The entire strength of the nation may be used to enforce, in any part of the land,
the full and free exercise of all national powers and the security of all rights intrusted
by the Constitution to its care. The strong arm of the National Government may be
put forth to brush away all obstructions to the freedom of interstate commerce or the
transportation of the mails. If the emergency arise, the Army of the nation and all
its militia are at the service of the nation to compel obedience to its laws. In re
Debs, 158 U. S., 564, 582; In re Neagle, 135 U. S., 1; Ex parte Siebold, 100 U. S.,
371, 395; U. S. v. Kirby, 7 Wall., 482.
ir
MILITARY LAWS OF THE UNITED STATES. 813
thousand dollars, or by imprisonment not exceeding one
year, or by both said punishments, in the discretion of the
court.
SEC. 3. Every contract, combination in form of trust o^T^JStorleB or
otherwise, or conspiracy, in restraint of trade or commerce
in any Territory of the United States or of the District of
Columbia, or in restraint of trade or commerce between
any such Territory and another, or between any such Ter-
ritory or Territories and any State or States or the District
of Columbia, or with foreign nations, or between the Dis-
trict of Columbia and any State or States or foreign nations,
is hereby declared illegal. Every person who shall make
any such contract or engage in any such combination
conspiracy, shall be deemed guilty of a misdemeanor, and,
on conviction thereof, shall be punished by fine not exceed-
ing five thousand dollars, or by imprisonment not exceeding
one year, or by both said punishments, in the discretion
of the court.
SEC. 4. The several circuit courts of the United States Jurisdiction of
. . ,. . United States
are nerebv invested with lunsdiction to prevent and re- circuit courts.
Pro secuting
strain violations of this act; and it shall be the duty of the officers.
several district attorneys of the United States, in their
respective districts, under the direction of the Attorney-
General, to institute proceedings in equity to prevent and
restrain such violations. Such proceedings may be by Procedure.
way of petition setting forth the case and praying that
such violation shall be enjoined or otherwise prohibited.
When the parties complained of shall have been duly noti-
fied of such petition the court shall proceed, as soon as
may be, to the hearing and determination of the -case; and Hearing, etc.
pending such petition, and before final decree, the court
may at an}T time make such temporary restraining order
or prohibition as shall be deemed just in the premises.
SEC. 5. Whenever it shall appear to the court before Process.
which any proceeding under section four of this act may
be pending that the ends of justice require that other
parties should be brought before the court, the court may
cause them to be summoned, whether they reside in the
district in which the court is held or not; and subpoenas
to that end may be served in any district by the marshal
thereof.
SEC. 6. Any property owned under any contract or by
any combination, or pursuant to an}^ conspiracy (and being sit
the subject thereof) mentioned in section one of this act,
and being in the course of transportation from one State
814 MILITARY LAWS OF THE UNITED STATES.
seizure! aniuon- to another, or to a foreign country, shall be forfeited to
damnation. foQ United States, and may be seized and condemned by
like proceedings as those provided by law for the for-
feiture, seizure, and condemnation of property imported
into the United States contrary to law.
Damages. SEC> 7. Any person who shall be injured in his business
or property by any other person or corporation by reason
Litigation. of anything forbidden or declared to be unlawful by this
act may sue therefor in any circuit court of the United
States in the district in which the defendant resides or is
found, without respect to the amount in controversy, and
Recovery. shall recover three fold the damages by him sustained,
and the costs of suit, including a reasonable attorney's fee.
SEC. 8. That the word "person," or "persons, "wherever
used in this act shall be deemed to include corporations
and associations existing under or authorized by the laws
of either the United States, the laws of any of the Territo-
ries, the laws of any State, or the laws of any foreign coun-
try. Act of July 2, 1890 (26 Stat. Z., 209).
NORTHERN PACIFIC RAILROAD.
Northern Pa- 2074. That said Northern Pacific Railroad, or any part
cific Railroad. J L.
July 2, 1864, s. thereof, shall be a post route and a military road, subject
to the use of the United States, for postal, military, naval,
and all other Government service, and also subject to such
regulations as Congress may impose restricting the charges
for such government transportation. Sec. 11, act of July
2, 1864 (1^ Stat. Z., 370).
«
THE UNION AND CENTRAL PACIFIC RAILROADS.
2075> ^hat the grants aforesaid are made upon condition
ras! 6° July ii862 that said company shall pay said bonds at maturity, and
v. 12, p. 493. shall keep said railroad and telegraph line in repair and
use, and shall at all times transmit dispatches over said
telegraph line, and transport mails, troops, and munitions
of war, supplies, and public stores upon said railroad for
the Government, whenever required to do so by any de-
partment thereof, and that the Government shall at all
times have the preference in the use of the same for all the
purposes aforesaid. Sec. 6, act of July 11, 1862 (12 Stat.
THE ATLANTIC AND PACIFIC RAILROAD.
2076> That said Atlantic and Pacific Railroad, or any
r°*dii July 27 Part tnereo^ shall be a post route and military road, sub-
is6*5, v.i4, P. 297.' ject to the USe of the United States for postal, military,
MILITARY LAWS OF THE UNITED STATES. 815
naval, and all other Government service, and also subject
to such regulations as Congress may impose restricting the
charges for such Government transportation. Sec. 11, act
of July 07, 1866 (H Stat. L., 297).
2077. That the Southern Pacific Railroad, a company p^ southern
incorporated under the laws of the State of California, is
hereby authorized to connect with the said Atlantic and
Pacific Railroad, formed under this act, at such point near
the boundary line of the State of California as they shall
deem most suitable for a railroad line to San Francisco,
and shall have a uniform gauge and rate of freight or fare
with said road; and in consideration thereof, to aid in its
construction, shall have similar grants of land, subject to
all the conditions and limitations herein provided, and
shall be required to construct its road on the like regula-
tions, as to time and manner, with the Atlantic and Pacific
Railroad herein provided for. Sec. 18, act of July 27,
1866 (14 Stat. L.,299).
ENFORCEMENT OF LAW IN THE HAWAIIAN ISLANDS.
2078. That the governor shall be responsible for the
faithful execution of the laws of the United States and of gJJ8ailan Is'
the Territory of Hawaii within the said Territory, and 19^ ^7'31A£riJ£'
whenever it becomes necessary he may call upon the com-
manders of the military and naval forces of the United
States in the Territory of Hawaii, or summon the posse
comitatus, or call out the militia of the Territory to pre-
vent or suppress lawless violence, invasion, insurrection,
or rebellion in said Territory, and he may, in case of rebel-
lion or invasion, or imminent danger thereof, when the
public safety requires it, suspend the privilege of the writ
of habeas corpus, or place the Territory, or any part
thereof, under martial law until communication can be had
with the President and his decision thereon made known.
Sec. 67, act of April 30, 1900 (31 Stat. L., 153).
816 MILITARY LAWS OF THE UNITED STATES.
Par.
NEUTRALITY.1
Par.
2085. Enforcement of foregoing provi-
sions.
2086. Compelling foreign vessels to de-
part.
2087. Armed vessels to give bond on
clearance.
2088. Detention by collectors of customs.
2089. Construction of this title.
2079. Accepting a foreign commission.
2080. Enlisting in foreign service.
2081. Arming vessels against people at
peace with the United States.
2082. Arming vessels to cruise against cit-
izens of the United States.
2088. Augmenting force of foreign vessels
of war.
2084. Military expeditions against people
at peace with the United States.
foreign coimSis* 2079> Every citizen of the United States who, within the
siApr 20 1818 c territory or jurisdiction thereof, accepts and exercises a
^Se^'sali^U commission to serve a foreign prince, state, colony, dis-
trict, or people, in war, by land or by sea, against any
prince, state, colony, district, or people with whom the
United States are at peace, shall be deemed guilty of a high
misdemeanor, and shall be fined not more than two thou-
sand dollars and imprisoned not more than three years.2
1 The neutrality act has been uniformly treated, by the Executive Departments and
by judges of the United States courts, as embracing warlike enterprises set on foot in
this country against a friendly power at peace with all the world. U. S. r. Sullivan,
9 N. Y. Leg. Obs., 257.
Neutrality, strictly speaking, consists in abstinence from any participation in a pub-
lic, private, or civil war, and in impartiality of conduct toward both parties; but the
maintenance unbroken of peaceful relations between two powers when the domestic
peace of one of them is disturbed is not neutrality in the sense in which the word is
used when the disturbance has acquired such head as to have demanded the recognition
of belligerency; and, as mere matter of municipal administration, no nation can
permit unauthorized acts of war within its territory in infraction of its sovereignty,
while good faith toward friendly nations requires their prevention. The Three
Friends, 166 U. S., 1.
The organization, in one country or State, of combinations to aid or abet rebellion
in another, or in any other way to act on its political institutions, is a violation of
national amity and comity, and an act of semihostile interference with the affairs of
other peoples. * * * But there is no municipal law to forbid and punish such
combinations, either in the United States or Great Britain. VIII Opin. Att. Gen. , 216.
The policy of this country is, and ever has been, a perfect neutrality and nonin-
terference in the quarrels of other nations. Ill Opin. Att. Gen., 739.
The act of April 30, 1818, like that of June 5, 1794, was intended to secure, beyond
all risk of violation, the neutrality and pacific policy which they consecrate as our
fundamental law. Ibid., 741.
In the absence of express authority from Congress, an officer of the Army can not
accept remuneration from a foreign power, in return for military or other public
service rendered, without a violation of Art. I, sec. 9, par. 7, of the Constitution. (a)
Nor can such an officer (in the absence of such authority) properly be granted a
leave of absence for the purpose of rendering foreign service, even without compen-
sation, since such a proceeding would be contrary to the spirit and intent of the laws
relating to the Army, which clearly comtemplate that the services of its officers shall
be rendered to the United States. Dig. Opin. J. A. G., par. 1375.
2 The enlistment of seamen or others for marine service on Mexican steamers in
New York, they not being Mexicans transiently within the United States, is a clear
violation of this section, and the persons enlisted, as well as the officers enlisting
them, are liable to the penalties thereby incurred. IV Opin. Att. Gen., 336.
This section applies to foreign consuls raising troops in the United States for the
military service of Great Britain. VII ibid., 367. It does not apply to those who go
a See U. S. v. Landers, 2 Otto., 79; XIII Opin. Att. Gen., 199.
MILITARY LAWS OF THE UNITED STATES. 817
2080. Every person who, within the territory or juris-
diction of- the United States, enlists or enters himself, or Jj,QC-2< md-> P-
hires or retains another person to enlist or enter himself, Sec.5282,u.s.
or to go beyond the limits or jurisdiction of the United
States with intent to be enlisted or entered in the service
of any foreign prince, state, colony, district, or people, as
a soldier, or as a marine or seaman, on board of any vessel
of war, letter of marque, or privateer, shall be deemed
guilty of high misdemeanbr, and shall be fined not more
than one thousand dollars, and imprisoned not more
than three years.1
2081. Every person who, within the limits of the United
n, -t n, -, peace with the
States, fits out and arms, or attempts to tit out and arm, united states.
or procures to be fitted out and armed, or knowingly is lie'. 5283,18.8.
concerned in the furnishing, fitting out, or arming, of any
vessel, with intent that such vessel shall be employed in
the service of any foreign prince or state, or of any colony,
district, or people, to cruise or commit hostilities against
the subjects, citizens, or property of any foreign prince or
state, or of any colony, district, or people, with whom the
United States are at peace, or who issues or delivers a
commission within the territory or jurisdiction of the United
States, for any vessel, to the intent that she may be so em-
ployed, shall be deemed guilty of a high misdemeanor, and
shall be fined not more than ten thousand dollars and im-
prisoned not more than three years. And every such ves-
sel, with her tackle, apparel, and furniture, together with
all materials, arms, ammunition, and stores which may
have been procured for the building and equipment thereof,
shall be forfeited; one-half to the use of the informer and
the other half to the use of the United States.2
abroad for foreign, enlistment, or to those who transport such persons. U. S. v.
Kazinski, 2 Sprague, 7. The enlistment must be made within the territory of the
United States, and the section does not apply to one who goes abroad with intent
there to enlist. Ibid. The words "soldier" and "enlist" as used in this section
are to be understood in their technical sense. Ibid.; U. S. v. O'Brien, 75 Fed. Rep.,
900.
1 See note to section 2079, p. 816.
2 To constitute an offense under this section, the vessel must be fitted out and
armed with the specific intent. ' U. S. v. Skinner, 1 Brun. Coll. Cases. It is not nec-
essary that the vessel should be armed or manned for the purpose of committing
hostilities, before she leaves the United States, if it is the intention that she shall be
so fitted subsequently (The City of Mexico, 28 F. R., 148) . or if the separate parts of
the expedition are to be united'on the high seas. U. S. v. The Mary N. Hogan, 18
Fed. Rep., 529, and 20 ibid., 50; The Carondelet, 37 Fed. Rep., 799; The Lancaster,
85 ibid., 760; U. S. v. Quincy, 6 Peters, 445.
The status of the insurgent party will be regarded by the courts as it is regarded
by the political or executive departments of the United States at the time of the com-
mission of the alleged offense. Gelston v. Hoyt, 3 Wheat., 246, 324; U. S. v. Palmer,
ibid., 610, 625; Kennett v. Chambers, 14 How., 38; Wharton, Int. Law Dig. §§551,
22924—08 - 52
818 MILITARY LAWS OF THE UNITED STATES.
2082' Every citizen of the United States who, without
unftldSstathe the limits thereof, fits out and arms, or attempts to fit out
ieclt'284?B.s. an(^ arm? or procures to be fitted out and armed, or know-
ingly aids or is concerned in furnishing, fitting out, or
arming any private vessel of war, or privateer, with intent
that such vessel shall be employed to cruise or commit
hostilities upon the citizens of the United States or their
property, or who takes the command of or enters on board
of any such vessel for such intent, or who purchases any
interest in any such vessel, with a view to share in the
profits thereof, shall be deemed guilty of a high misde-
meanor, and fined not more than ten thousand dollars and
imprisoned not more than ten years. And the trial for
such offense, if committed without the limits of the United
States, shall be in the district in which the offender shall
be apprehended or first brought.
fo^egSefoJeigI 2083> Every person who, within the territory or juris-
V15c! ?f S£' diction of the United States, increases or augments, or
Sec.5285, R.S. procures to be increased or augmented, or knowingly is
552; U. S. v. Trumbull, 48 F. R., 99, 104. The word "people," as used in this sec-
tion, is "one of the denominations applied by the act of Congress to a foreign power."
U. S. v. Quincy, 6 Pet., 445.
I know of no law or regulation which forbids any person, or government, whether
the political designation be real or assumed, from purchasing arms from the citizens
of the United States and shipping them at the risk of the purchaser. X Opin. Att.
Gen., 452. The sending of munitions of war from a neutral country to a belligerent
port for sale, as articles of commerce , is unlawful only as subjecting such property
to capture. The Santissima Trinidad, 7 Wheat., 283; The City of Mexico, 24 F. R.,
924. It is the right of a belligerent to purchase goods and instruments of war in a
neutral nation, but it may be denied by a law passed for such purpose. X Opin.
Att. Gen., 61.
The provisions of this section do not apply to a vessel which receives arms and
munition of war in this country, as cargo merely, with intent to carry them to a
party of insurgents in a foreign country, but not with the intent that they shall con-
stitute any part of the fittings or furnishings of the vessel herself. U. S. v. The
Itata, 56 F. R., 608; U. S. v. 2,000 Cases of Rifles, ibid. A vessel is not liable to for-
feiture under this section, nor is she liable to condemnation as piratical, on the
ground that she is in the employ of an insurgent party which has not been recog-
nized by the United States as having belligerent rights. U. S. v. The Itata, 56 F. R.,
608; U. S. v. Weed, 5 Wall., 62; The Watchful, 6 Wall., 91.
In the case of the Horsa, Wiborg v. U. S., 163 U. S. 632, decided on appeal in the
Supreme Court of the United States on May 25, 1896, it was held " that any combi-
nation of men organized to go to Cuba to make war upon its government, provided
with 'arms and ammunition, constitutes a military expedition. It is not necessary
that the men shall be drilled, put in uniform ( or prepared for efficient service, nor
that they shall have been organized as or according to the tactics or rules which
relate to what is known as infantry, cavalry, or artillery. It is sufficient that they
shall have combined and organized here to go there and make war on a foreign
government, and to have provided themselves with the means of doing so. Whether
such provision, as by arming, etc., is necessary need not to be decided in this case.
Nor is it important that they intended to make war as an independent body or in
connection with others. Where men go without such combination and organization
to enlist as individuals in a foreign army, they do not constitute such military expe-
dition, and the fact that the vessel carrying them might carry arms as merchandise
would not be important." See also The Estrella, 4 Wh., 298; The Gran Para, 7
Wh., 471; The Santa Maria, 7 Wh., 490; The Monte Allegre, 7 Wh., 520; U. S. v.
Reyburn, 6 Pet,. 352; U. S. v. Quincy, 6 Pet., 445; Wiborg v. U. S., 163, U. S. 632.
MILITARY LAWS OF THE UNITED STATES. 819
concerned in increasing or augmenting, the force of any
ship of war, cruiser, or other armed vessel, which at the
time of her arrival within the United States was a ship of
war, or cruiser, or armed vessel, in the service of any for-
eign prince or state, or of any colony, district, or people,
or belonging to the subjects or citizens of any such prince
or state, colony, district, or people, the same being at war
with any foreign prince or state, or of any colony, district,
or people, with whom the United States are at peace, by
adding to the number of the guns of such vessel, or by
changing those on board of her for guns of a larger cali-
ber, or by adding thereto any equipment solely applicable
to war, shall be deemed guilty of a high misdemeanor, and
shall be fined not more than one thousand dollars and be
imprisoned not more than one year.1
2084. Every person who, within the territory or juris-
diction of the United States, begins, or sets on foot,
provides or prepares the means for, any military expedi- stggs- 6 md^ p
tion or enterprise, to be carried on from thence against the 44|ec.5286, B .s.
territory or dominions of any foreign prince or state, or
of any colony, district, or people, with whom the United
States are at peace, shall be deemed guilty of a high mis-
demeanor, and shall be fined not exceeding three thousand
dollars, and imprisoned not more than three years.2
1 The repair of Mexican war steamers in the port of New York, together with the
augmenting their force by adding to the number of their guns, or by changing those
originally on board for those of larger caliber, or by the addition of any equipment
solely applicable to war, is a violation of this section. But the repair of their bot-
toms or copper, etc. , does not constitute any increase or augmentation of force within
the meaning of the act, and the steamers are not liable to seizure by any judicial proc-
ess under it. IV Opin. Att. Gen., 336.
The taking on of a crew of American citizens, or of aliens domiciled in the United
States would constitute a violation of this section. The Alerta, 9 Cranch, 359.
'2 When a party of insurgents, already organized and carrying on war against the
government of a foreign country, send a vessel to procure arms and ammunition in
the United States, the act of purchasing such arms and ammunition and placing
them aboard the vessel is not within the scope of this section, which prescribes a pen-
alty for every person who, within the limits of the United States, begins or sets on
foot, or prepares or provides the means for any military expedition or enterprise " to
be carried on from thence." Such expeditions and enterprises must originate within
the jurisdiction of the United States, and the terms of the statute do not apply to an
expedition originating within the territory of a foreign state. U. S. v. Trumbull, 48
Fed. Kep., 99. For liability of the officers of the ship, see U. S. v. Rand, 17 ibid.,
142. See, also, Wiborg v. U. S., 163 U. S., 632; U. S. v. Ybanez, 53 Fed. Rep., 536;
U. S. v. Pena, 69 ibid., 983; U. S. v: Hughes, 70 ibid., 972; U. S. v. Hart, 74 ibid.,
724; U. S. v Nunez, 82 ibid., 599; U. S. v. Murphy, 84 ibid., 609.
The transportation of goods for commercial purposes only, and the carriage of per-
sons separately, though their individual design may be to enlist in a foreign strife,
are not prohibited by our law, if the transportation is without any features of a mili-
tary character. Indications of a military operation or of a military expedition are
concert and unity of action, organization of men to act together, the presence of
weapons, and some form of command or leadership. When these exist and are
known to the persons engaged in the transportation, all who knowingly aid in such
transportation for military purposes are liable under section 5286 of the Revised Stat-
utes. U. S. v. Nufiez et al., 82 Fed. Rep., 599.
820 MILITARY LAWS OF THE UNITED STATES.
2085< Tne district courts shall take cognizance of all
Vise°cn8 a>id complaints, by whomsoever instituted, in cases of captures
sofv^VSo c' ma(ie within the waters of the United States, or within a
Sec. 5287, R. s. marine league of the coasts or shores thereof. In every
case in which a vessel is fitted out and armed, or attempted
to be fitted out and armed, or in which the force of any
vessel of war, cruiser, or other armed vessel is increased or
augmented, or in which any military expedition or enter-
prise is begun or set on foot, contrary to the provisions
and prohibitions of this Title; and in every case of the cap-
ture of a vessel within the jurisdiction or protection of
the United States as before defined; and in every case in
which any process issuing out of any court of the United
States is disobeyed or resisted by any person having the
custody of any vessel of war, cruiser, or other armed vessel
of any foreign prince or state, or of any colony, district, or
people, or of any subjects or citizens of any foreign prince
or state, or of any colony, district, or people, it shall be
lawful for the President, or such other person as he shall
have empowered for that purpose, to employ such part of
the land or naval forces of the United States, or of the
militia thereof, for the purpose of taking possession of
and detaining any such vessel, with her prizes, if any, in
order to the execution of the prohibitions and penalties of
this Title, and to the restoring of such prizes in the cases
in which restoration shall be adjudged; and also for the
purpose of preventing the carrying on of any such expe-
dition or enterprise from the territories or jurisdiction of
the United States against the territories or dominions of
any foreign prince or state, or of any colony, district, or
people, with whom the United States are at peace.
°to 2086> ^ sna^ ke lawful f°r tne President, or such person
c as he shall empower for that purpose, to employ such part
t'°f the land or naval forces of the United States, or of the
s.
militia thereof, as shall be necessary to compel any foreign
vessel to depart the United States in all cases in which, by
the laws of nations or the treaties of the United States,
she ought not to remain within the United States.
on 2087. The owners or consignees of every armed vessel
sailmg out of the ports of the United States, belonging
Sec.5289,K.s. wholly or in part to citizens thereof, shall, before clearing
out the same, give bond to the United States, with sufficient
sureties, in double the amount of the value of the vessel
and cargo on board, including her armament, conditioned
that the vessel shall not be employed by such owners to
MILITARY LAWS OF THE UNITED STATES.
821
CuSy-
cruise or commit hostilities against the subjects, citizens,
or property of any foreign prince or state, or of any col-
ony, district, or people with whom the United States are
at peace.1
2088. The several collectors of the customs shall detain
any vessel manifestly built for warlike purposes, and about t0Apr.2o, isis, c.
to depart the United States, the cargo of which principally ^cVs&ofR.s.
consists of arms and munitions of war, when the number of
men shipped on board, or other circumstances, render it
probable that such vessel is intended to be employed by
the owners to cruise or commit hostilities upon the sub-
jects, citizens, or property of any foreign prince or state, or
of any colony, district, or people with whom the United
States are at peace, until the decision of the President is
had thereon, or until the owner gives such bond and secu-
rity as is required of the owners of armed vessels by the
preceding section.
2089. The provisions of this Title shall not be construed
to extend to any subject or citizen of any foreign prince,
state, colony, district, or people who is transiently within
the United States, and enlists or enters himself on board
of any vessel of war, letter of marque, or privateer, which
at the time of its arrival within the United States was fitted
and equipped as such, or hires or retains another subject or
citizen of the same foreign prince, state, colony, district,
or people, who is transiently within the United States, to
enlist or enter himself to serve such foreign prince, state,
colony, district, or people, on board such vessel of war,
letter of marque, or privateer, if the United States shall
then be at peace with such foreign prince, state, colony,
district, or people. Nor shall they be construed to prevent
the prosecution or punishment of treason, or of any piracy
defined by the laws of the United States.
Sec> 5291»B-S-
Par.
2090. Protection of accused.
2091. Powers of receiving agent.
EXTRADITION.
Par.
2092. Penalty for opposing agent.
2093. Extradition to occupied territory.
°f
2090. Whenever any person is delivered by an}T foreign
government to an agent of the United States, for the pur- 14 p
pose of being brought within the United States and tried ^^ 5275,B s.
lThe law does not prohibit armed vessels belonging to citizens of the United States
from sailing out of our ports; it only requires the owners to give security that such
vessels shall not be employed by them to commit hostilities against foreign powers
at peace with the United States. U. S. v. Quincy, 5 Pet., 445.
822 MILITARY LAWS OF THE yglTED STATES.
for any crime of which he is duly accused, the President
shall have power to take all necessary measures for the
transportation and safe-keeping of such accused person,
and for his security against lawless violence, until the final
conclusion of his trial for the crimes or offenses specified
in the warrant of extradition, and until his final discharge
from custody or imprisonment for or on account of such
crimes or offenses, and for a reasonable time thereafter,
and may employ such portion of the land or naval forces
of the United States, or of the militia thereof, as may
be necessary for the safe-keeping and protection of the
accused.
recei^ng°offtSd- 2091. Any person duly appointed as agent to receive, in
a7orde!^|oevderbn^ behalf of the United States, the delivery, by a' foreign
m|ec! 2, ibid., p. government, of any person accused of crime committed
^'ec. 5276,R.s. within the jurisdiction of the United States, and to con-
vey him to the place of his trial, shall have all the powers
of a marshal of the United States, in the several districts
through which it may be necessary for him to pass with
such prisoner, so far as such power is requisite for the
prisoner's safe-keeping.
poSlfen^ete" 2092. Every person who knowingly and willfully ob-
iecil'277j'B.s. structs, resists, or opposes such agent in the execution of
his duties, or who rescues or attempts to rescue such pris-
oner, whether in the custody of the agent or of any officer
or person to whom his custody has lawfully been com-
mitted, shall be punishable by a fine of not more than one
thousand dollars, and by imprisonment for not more than
one year.
occupie^ferrito0 2093. Whenever any foreign countiy or territory, or any
ryjune 6 1900 v Part thereof, is occupied by or under the control of the
31, p. 666. United States, any person who shall violate, or who has
violated, the criminal laws in force therein, by the com-
mission of any of the following offenses, namely: Murder
and assault with intent to commit murder; counterfeiting
or altering money, or uttering or bringing into circulation
counterfeit or altered money; counterfeiting certificates
or coupons of public indebtedness, bank notes, or other
instruments of public credit, and the utterance or circula-
tion of the same; forgery or altering, and uttering what
is forged or altered; embezzlement or criminal malversa-
tion of the public funds, committed by public officers,
employees, or depositaries; larceny or embezzlement of an
amount not less than one hundred dollars in value; rob-
MILITARY LAWS OF THE UNITED STATES. 823
bery; burglary, defined to be the breaking and entering
by nighttime into the house of another person with intent
to commit a felony therein; and the act of breaking and
entering the house or building of another, whether in the
da}^ or nighttime, with the intent to commit a felony
therein; the act of entering, or of breaking and entering
the offices of the Government and public authorities, or
the offices of banks, banking houses, savings banks, trust
companies, insurance or other companies, with the intent
to commit a felon}T therein; perjury or the subornation of
perjury; rape; arson; piracy by the law of nations; mur-
der, assault with intent to kill, and manslaughter, commit-
ted on the high seas, on board a ship owned by or in con-
trol of citizens or residents of such foreign countiy or
territory and not under the flag of the United States, or of
some other government; malicious destruction of or
attempt to destroy railways, trams, vessels, bridges, dwell-
ings, public edifices or other buildings, when the act en-
dangers human life, and who shall depart or flee, or who
has departed or fled, from justice therein to the United
States, any Territory thereof, or to the District of Colum-
bia, shall, when found therein, be liable to arrest and de-
tention by the authorities of the United States, and on
the written request or requisition of the military governor
or other chief executive officer in control of such foreign
country or territory shall be returned and surrendered as
hereinafter provided to such authorities for trial under the
laws in force in the place where such offense was commit-
ted. All the provisions of sections fifty-two hundred and
seventy to fifty-two hundred and seventy-seven of this
Title, so far as applicable, shall govern proceedings author-
ized by this proviso: Provided further, That such proceed-
ings shall be had before a judge of the courts of the United
States only, who shall hold such person on evidence estab-
lishing probable cause that he is guilty of the offense
charged: And provided further, That no return or surren-
der shall be made of any person charged with the commis-
sion of any offense of a political nature. If so held such
person shall be returned and surrendered to the authorities
in control of such foreign country or territory on the order
of the Secretary of State of the United States, and such
authorities shall secure to such a person a fair and impar-
tial trial.1— Act of June 6, 1900 (31 Stat. Z., 656.)
foregoing enactment constitutes a proviso to section 5270, Revised Statutes.
824
MILITARY LAWS OF THE UNITED STATES.
GUANO ISLANDS.
Par.
2094. Claim of United States to islands.
2095. Notice of discovery and proofs to
be furnished.
2096. Completion of proof in case of
death of discoverer.
2097. Exclusive privileges of discoverer.
Par.
2098. Restrictions upon exportation.
2099. Regulation of guano trade.
2100. Criminal jurisdiction.
2101. Employment of land and naval
forces.
2102. Right to abandon island.
Claim of United
States to islands.
2094. Whenever any citizen of the United States dis-
MofvyjutS covers' a deposit of guano on any island, rock, or key, not
n|ec.657o, B.S. w^mn the lawf ul jurisdiction of any other government,
and not occupied by the citizens of any other government,
and takes peaceable possession thereof, and occupies the
same, such island, rock, or ke}7 may, at the discretion of
the President, be considered as appertaining to the United
States.
2095. The discoverer shall, as soon as practicable, give
to" be fur- notice, verified by affidavit, to the Department of State, of
Secd557i B s suc^ Discovery, occupation, and possession, describing the
island, rock, or key, and the latitude and longitude thereof,
as near as may be, and showing that such possession was
taken in the name of the United States; and shall furnish
satisfactory evidence to the State Department that such
island, rock, or key was not, at the time of the discovery
thereof, or of the taking possession and occupation thereof
by the claimants, in the possession or occupation of any
other government or of the citizens of any other govern-
ment, before the same shall be considered as appertaining
to the United States.
2096. If the discoverer dies before perfecting proof of
of discov- discovery or fully complying with the provisions of the
Apr. 2, 1872, c. preceding section, his widow, heir, executor, or adminis-
kec.6672; B.S. trator shall be entitled to the benefits of such discovery,
upon complying with the provisions of this Title; but noth-
ing herein contained shall be held to impair any rights of
discovery or any assignment by a discoverer heretofore
recognized by the United States.
nel^of^scov- 2097- Tlie discoverer, or his assigns, being citizens of
erAug is 1856 c ^ne United States, may be allowed, at the pleasure of Con-
164, s. 2, v. 11, p. gress? the exclusive right of occupying such island, rocks,
Sec.6573, B.S. or ^eys for the purpose of obtaining guano, * •* *
and may be allowed to charge and receive for every ton
thereof delivered alongside a vessel, in proper tubs, within
reach of ship's tackle, a sum not exceeding eight dollars
per ton for the best quality, or four dollars for every ton
taken while in its native place of deposit.
completion of
roof in case of
81, s.l
Sec
MILITARY LAWS OF THE UNITED STATES. 825
2098. No guano shall be taken from any such island,
rock, or key, except for the use of the citizens of the
United States or of persons resident therein. The dis-
coverer, or his widow, heir, executor, administrator, or J^^JJ
assigns, shall enter into bond, in such penalty and with 48^ec> 6574?B >SB
such sureties as may be required by the President, to
deliver the guano to citizens of the United States, for the
purpose of being used therein, and to none others, and at
the price prescribed, and to provide all necessary facili-
ties for that purpose within a time to be fixed in the bond;
This section shall, however, be suspended in
relation to all persons who have complied with the provi-
sions of this Title, for five years from and after the four-
teenth day of July, eighteen hundred and seventy-two.1
2099. The introduction of guano from such islands, g^^^ ot
rocks, or keys, shall be regulated as in the coasting trade j^^gfv^'p;
between different parts of the United States, and the same 12|e<% 5575 K g
laws shall govern the vessels concerned therein.
2100. All acts done, and offenses or crimes committed, di£tr^inal juris"
on any such island, rock, or key, by persons who may
land thereon, or in the waters adjacent thereto, shall be
deemed committed on the high seas, on board a merchant
ship or vessel belonging to the United States; and shall be
punished according to the laws of the United States relat-
ing to such ships or vessels and offenses on the high seas,
which laws for the purpose aforesaid are extended over
such islands, rocks, and keys.
2101. The President is authorized, at his discretion, to .
I lana and naval
employ the land and naval forces of the United States to fog^?-5 md
protect the rights of the discoverer or his widow, heir, sec.5577,R.s.
executor, administrator, or assigns.
2102. Nothing in this Title contained shall be construed
as obliging the United States to retain possession of the
islands, rocks, or keys, after the guano shall have been
removed from the same.
RESTRICTION UPON THE USE OF MILITARY FORCE.
2103. From and after the passage of this act it shall
be lawful to employ any part of the Army of the United june is
States, as a posse comitatus, or otherwise, for the purpose 1878 v- 20f p- 152>
of executing the laws, except in such cases and under such
circumstances as such employment of said force may be
expressly authorized by the Constitution or by act of Con-
1 This section was suspended for five years by the act of March 15, 1878 (20 Stat. L.,
30), and for a further period of five years by the act of April 14, 1884 (23 Stat. L., 11).
826 MILITARY LAWS OF THE UNITED STATES.
gress; and no money appropriated by this act shall be
used to pay any of the expenses incurred in the employ-
ment of any troops in violation of this section.1 Sec. 15,
act of June 18, 1878 (80 Stat. Z.,
llt is provided in section 15 of the act of June 18, 1878, chapter 263, that "From
and after the passage of this act it shall not be lawful to employ any part of the
Army of the United States, as a posse comitatus, or otherwise, for the purpose of
executing the laws, except in such cases and under such circumstances as such
employment of said force may be expressly authorized by the Constitution or by act
of Congress. In view of this legislation, held as follows:
That inasmuch as it was not expressly authorized by any act of Congress that
United States marshals should be empowered to summon the military to serve on a
posse comitatus (but this was authorized only indirectly and impliedly by the pro-
vision of the act of September 24, 1789, incorporated in section 787 of the Revised
Statutes), (a) the Army could not, under the existing law, legally act on the posse
comitatus of a marshal or deputy marshal of the United States. (6) Dig. Opin J.
A. G., 162, par. 6. See also Ibid., ed. 1901, par. 487.
That in the absence of such an "unlawful combination" as is contemplated by
section 5298, Revised Statutes, the President would not be authorized to employ a
military force to assist inspectors of customs in seizing smuggled property or arrest-
ing persons concerned in violations of the revenue laws, such an employment not
being expressly authorized by any statute.
That whenever a marshal or deputy marshal was prevented from making due serv-
ice of judicial process, for the arrest of persons or otherwise, by the forcible resist-
ance or opposition of an unlawful combination or assemblage of persons, the President
was expressly authorized by section 5298, Revised Statutes, to employ such part of
the Army as he might deem necessary to secure the due service of such process and
execute the laws; first, however, in any such case (as in any case arising under sec-
tions 5297 and 5299) making proclamation as required by section 5300.
That, notwithstanding the legislation of June 18, 1878, the President was author-
ized to employ the military to arrest and prevent persons engaging in introducing
liquor into the Indian country contrary to law, as also to arrest persons being other-
wise in the Indian country in violation of law,(c) or to make the arrest therein of
Indians charged with the commission of crime, such employment being expressly
authorized by sections 2150 and 2152, Revised Statutes.
That the President was authorized by section 2150, Revised Statutes, to remove
by military force, after a reasonable notice to quit certain persons commorant upon
an Indian reservation contrary to the terms of a treaty between the United States
and the tribe occupying the reservation, an<jl who therefore were there "in violation
of law" in the sense of that section, (d)
That the provision of June 18, 1878, was not to be construed as interfering with
the authority and duty of the President to employ a necessary military force for the
removal of trespassers from a military reservation, such employment not being,
properly speaking, "for the purpose of executing the laws," but a mere protecting,
by the executive department, of public property in its military charge, (e) Dig.
Opin. J. A. G., 162, par. 6.
In the absence of any express provision contained in the acts authorizing the
President to make reservations of forest lands (acts of September 25 and October 1,
1890, and March 3, 1891, s. 24) by which he is expressly empowered to use the Army
a VI Opin. Att. Gen., 471; letter of Attorney-General Evarts to the United States marshal for the
northern district of Florida, Attorney-General's Office, August 20, 1868; general instructions to United
States marshals from Attorney-General Taft, published in General Orders 96, Headquarters of Army,
1876; also opinion cited in next note.
6 See, to a similar effect, opinion of the Attorney-General of October 10, 1878 (XVI Opin., 162); also
XIX Opin., 293.
cBut note that, in view of the provisions of section 2151, Revised Statutes, an officer of the Army
who detains a person arrested under section 2150 longer than five days before " conveying him to the
civil authority," or subjects him when in arrest to unreasonably harsh treatment, renders himself
liable to an action in damages for false imprisonment. In re Carr, 3 Sawyer, 316; Waters v. Campbell,
5 ibid., 17.
dSee XIV Opin. Att. Gen., 451; 20 ibid., 245; and note the proclamation of the President published in
General Orders 16, Headquarters of Army, 1880, relating to the intrusion of unauthorized persons
upon the " Indian territory " and declaring that the Army would be employed to effectuate their
removal if necessary,
e"Due caution should be observed, however, that in executing this duty there be no unnecessary
or wanton harm done to persons or property." IX Opin. Att. Gen., 476.
MILITARY LAWS OF THE UNITED STATES. 827
TREASON.
2104. Every person owing allegiance to the United States JJJJ^gJJ 1790 c.
who levies war against them, or adheres to their enemies, ^1. £ yjj^
giving them aid and comfort within the United States or \^- 1>8> PP- '479>
elsewhere, is guilty of treason.1 Sec. 688i,B.s.
2105. Every person guilty of treason shall suffer d«atb;;
or, at the discretion of the court, shall be imprisoned at
hard labor not less than five years, and fined not less than
ten thousand dollars, to be levied on and collected out of
any or all of his property, real and personal, of which he
was the owner at the time .of committing such treason, any
sale or conveyance to the contrary notwithstanding; and
every person so convicted of treason shall, moreover, be
incapable of holding any office under the United States.2
2106. Every person owing allegiance to the United States trS^011 of
and having knowledge of the commission of any treason 9 ^P^^C.
against them, who conceals, and does not, as soon as may geV'S5Vwhltb97~
be, disclose and make known the same to the President or £ °SeSfl i^y^d?
to some judge of the United States, or to the governor, ^L&ndSi wood?
or to some judge or justice of a particular State, is guilty 47|ec. 6333,B.S.
of misprision of treason, and shall be imprisoned not more
than seven years, and fined not more than one thousand
dollars.
2107. Every person who incites, sets on foot, assists, or^g^1^0^^
engages in any rebellion or insurrection against the author- jjjjj or insurrec-
ity of the United States, or the laws thereof, or gives ^ a^ JVifJ
or comfort thereto, shall be punished by imprisonment not 59|ec 6334 R g
more than ten years, or by a fine of not more than ten
thousand dollars, or by both of such punishments; and
shall, moreover, be incapable of holding any office under
the United States.
2108. Every citizen of the United States, whether actually ^Jj^*1 c^g
resident or abiding within the same, or in any foreign coun- Jjgjg1 Govern-
try, who, without the permission or authority of the Gov- 1 ^ ^™y c-
ernment, directly or indirectly, commences or carries on 'sec.o885,B.s.
in execution of such statutes, held that the President would not be authorized to
employ, as a posse comitatus or otherwise, the military forces to aid in enforcing the
regulations established by the Secretary of the Interior for the care and management
of such lands. Such employment, if permitted, would render the troops trespassers
and liable to civil .suits and prosecutions. Ibid., 165, par. 9.
bearing v. U. S., 3 N. & H., 165.
2U. S. v. The Insurgents, 2 Ball., 385; U. S. v. Mitchell, 2 Ball., 348; U. S. v. Vil-
lato, 2 Ball., 370; Ex parte Bolman and Swartwout, 4 Or., 75; U. S. v. Pryor, 3 Wash.,
234; U. Sv. Hanway, 2 Wall. Jr. C. C., 139; 1 Burr's Trial, 14-16; 2 Burr's Trial, 402,
405, 417; U. S. v. Hoxie, 1 Paine, 265; U. S. v. Greathouse, 2 Abb. C. C., 364; Confis-
cation Cases, 20 Wall., 92; Wallack et al. v. Van Eiswick, 92 U. S., 202; Windsors
McVeigh, 93 U. S., 274.
828 MILITARY LAWS OF THE UNITED STATES.
any verbal or written correspondence or intercourse with
any foreign government, or any officer or agent thereof,
with an intent to influence the measures or conduct of any
foreign government or of any officer or agent thereof, in
relation to any disputes or controversies with the United
States, or to defeat the measures of the Government of the
United States; and every person, being a citizen of, or
resident within, the United States, and not duly author-
ized, who counsels, advises, or assists in any such corre-
spondence, with such intent, shall be punished by a fine of
not more than five thousand dollars, and by imprisonment
during a term not less than six months, nor more than
three years; but nothing in this section shall be construed
to abridge the right of a citizen to apply, himself or his
agent, to any foreign government, or the agents thereof,
for redress of any injury which he may have sustained from
such government, or any of its agents or subjects.
s frmjitious °on 2109. If two or more persons in any State or Territory
^juiy si, 186M- conspire to overthrow, put down, or destroy by force the
2<?s'22v i7*pis' 'Government of the United States, or to levy war against
LanXe 18P Vaif ^em? or ^° oppose by force the authority thereof;, or by
16|'ec 6336 B s ^orce *o prevent, hinder, or delay the execution of any law of
the United States; or by force to seize, take, or possess any
property of the United States contrary to the authority
thereof; each of them shall be punished by a fine of not
less than five hundred dollars and not more than five thou-
sand dollars, or by imprisonment, with or without hard
labor, for a period not less than six months, nor more than
six years, or by both such fine and imprisonment.
di?i?rortlBSi8ors 2110. Every person who recruits soldiers or sailors
^serve^ against within the United States to engage in armed hostility
stAu8' 6 1861 c a£ainst the same, or who opens within the United States a
56,^ s. i, V. 12,' p. recruiting station for the enlistment of such soldiers or sail-
sec. 5337, B.s. ors, to serve in any manner in armed hostility against the
United States, shall be fined not less than two hundred dol-
lars, nor more than one thousand dollars, and imprisoned
not less than one year, nor more than five years.
seroagSnstthe 2111. Every soldier or sailor enlisted or engaged within
Useced2SSSs' ^6 United States, with intent to serve in armed hostility
Sec. 5338,B.s. against the same, shall be punished by a fine of one hun-
dred dollars, and by imprisonment not less than one yeai
nor more than three years.
MILITAKY LAWS OF THE UNITED STATES. 829
THE LAW OF WAR1 — MILITARY OCCUPATION.
2112. Spain relinquishes all claim of sovereignty over
the island of Cuba, and as the island is, upon its evacua- }fyntsyp^ne
tion by Spain, to be occupied by the United States, the tery occupation.
1 The law of war. — The law of war is, in brief, the law of military government and
authority as exercised in time of war, foreign or civil. Its usual field is the territory
of a conquered country in the occupation of a hostile army; it is sometimes extended,
however, though generally in a milder form, to localities under "martial law." It
is properly a part of the law of nations, though its application may be materially
varied by the circumstances of the country or the people brought under its sway.
Dig. Opin. J. A. G., par. 1567.
Rule of noninter course. — It is a fundamental principle of the law of war that during
a state of war all commercial intercourse between the belligerents is interdicted and
made illegal except when and where it may be expressly authorized by the Govern-
ment. During the late civil war, which, as respects the application in general of the
laws and usages of war, was assimilated to a foreign war, (a) all trade and intercourse
with the enemy, except so far as permitted by the President under authority from
Congress (or in rare cases by a commanding general in the field representing the
President), was necessarily suspended. (6)
As to the principal forms of violation of the law of nonintercourse and other viola-
tions of the laws of war, made the subject of trial by military commission during
the late war, see the title "Military Commissions" in the chapter entitled MILITARY
TRIBUNALS.
Held (January, 1865) that a system of correspondence which had been concerted
and maintained between Northern and Southern newspapers by means of an inter-
change of published communications entitled "Personals," was an evasion of the
rule interdicting intercourse with the enemy in time of war, and, not being within
the regulations established for correspondence by letter between the lines by flag of
truce, should not, however innocent might be many or most of the communications,
be sanctioned by the Government, but that the proprietors of the Northern news-
papers concerned should be notified that unless ths practice was discontinued they
would be liable to be proceeded against for promoting correspondence with the enemy
in violation of the laws of war or of the special act of February 25, 1863. (c) — (12 Stat.
L., 696.) Dig. Opin. J. A. G., par. 1574.
Offenses against the law of nonintercourse between the belligerents in time of war
are no less such when committed by foreigners than when committed by citizens.
Thus where certain persons made their way early in the late war from Scotland to
South Carolina, engaged for a considerable period in the manufacture of treasury
notes for the Confederate authorities, and at the end of their employment came
secretly and without authority into our lines with the design of returning to their
homes, held that, though British subjects, they had identified themselves with the
cause of the enemy, and were properly amenable to trial for the offense of penetrat-
ing our military lines in violation of the laws of war. (d) Ibid., par. 1570.
Newspapers. — There can be no doubt as to the authority of the commander of an
a See Prize Cases, 2 Black, 666-669; Dow v. Johnson, 10 Otto, 164; Brown v. Hiatt, 1 Dillon, 372; Phil-
lips v. Hatch, ibid., 571; Sanderson v. Morgan, 39 N. Y., 231; Perkins v. Rogers, 35 Ind., 124; Leathers v.
Com. Ins. Co., 2 Bush, 639; Hedges v. Price, 2 W. Va.,192.
b The Ouachita Cotton, 6 Wallace, 521; Cappell v. Hill, 7 ibid., 542, 554; McKee v. United States, 8 ibid.,
163; United States v. Grossmayer, 9 ibid., 72; Montgomery v. United States, 15 ibid., 395; Hamilton v.
Dillin, 21 ibid, ,73; Mitchell v. United States, ibid., 359: Matthews v. McStea, 1 Otto, 7; Dow?'. Johnson,
10 ibid., 164; Kershaw v. Kelsey, 100 Mass., 561; Lieber's Instructions, G. O., 100, War Dept., 1863, par. 86.
Besides the suspension incident to the state of war, a suspension of commercial intercourse with the
enemy was specially directed by act of Congress of July 13, 1861, and proclaimed by the President on
August 16, 1861. By authority conferred by the same statute general regulations, concerning com-
mercial intercourse with and in the States declared in insurrection, were approved by the President,
January 26, 1864, and published in G. O.,53, Department of the Gulf, of April 29, 1864.'
cSee General Orders, No. 10, Department of the East, 1865.
d Where a party arrested in attempting without authority to cross the Potomac for the purpose of
holding communication with persons in the enemy's country was ordered by the department com-
mander—his offense having been committed in a district in military occupation— to be placed under
military surveillance and to furnish a bond with sufficient sureties, obliging him not to attempt again
during the war to join or hold intercourse with the enemy, held that such proceeding was warranted
by the laws and customs of war. Dig. Opin. J. A. G., par. 1571.
. Two soldiers of the United States Army having been seized and delivered across the lines to the
enemy, by a party of civilians, in a portion of one of the insurrectionary States in the occupation of
the Federal forces, an equal number of the citizens of the district were ordered by the commanding
general to be arrested and held till the offenders, who meanwhile had taken refuge with the enemy,
should be surrendered for trial. Held that such an act of retaliation was warranted by the laws and
usages of tvar. Ibid., par. 1572.
830 MILITAEY LAWS OF THE UNITED STATES.
Dec^io*1 United States will, so long as such occupation shall last,
1898, v. so. 1754. assume and discharge the obligations that may, under inter-
national law, result from the fact of its occupation for the
army, in occupation and government of the enemy's country, to suppress a newspaper
or other publication deemed by him to be injurious to the public interests in exciting
opposition to the dominant authority or encouraging the support of the enemy's cause
on the part of the inhabitants. A newspaper may be a powerful agent for such a
purpose, and when it is so it may, under the laws of war, as legally be silenced as
may a fort or battery of the enemy in the field. Ibid., par. 1573.
Contributions. — Contributions of money exacted from the enemy by competent
military authority, being justified by the law of war and conquest, (a) held that a tax
of five dollars per bale, levied (in 1864) by the military commander at New Orleans,
General Canby, upon cotton brought into that city and applied to hospital, sanitary,
and charitable purposes, was authorized under the discretionary power with which
such a commander was properly invested in time of war. (6) Ibid., par. 1575.
Military occupation. — It is a principle of the law of war that the municipal laws of
a conquered country continue in force during the military occupation by the con-
queror, except in so far as the same may necessarily be suspended or their operation
be affected by his acts.(c) So where a testator had executed in Vicksburg, Miss.,
after its capture and during its occupation by our forces, a will devising real estate,
but such will, in not being attested by the required number of witnesses, was invalid
under the State law held, that, as this law was in no respect modified upon the cap-
ture, the devisee under the will, however loyal, could not properly be invested by
military authority with the legal title to such estate against the heirs at law. Dig.
Opin. J. A. G., par. 1576.
Courts in occupied territory. — It is authorized by the laws of war for a military offi-
cer commanding in time of war in a region in military occupation, and where the
ordinary courts are closed by the exigencies of the war, to appoint a special court or
judge for the determination of cases not properly cognizable by the ordinary mili-
tary tribunals. In the civil war such courts were not unfrequently constituted and
were commonly designated provost courts. Such courts had no jurisdiction of purely
military offenses (i. e., offenses which the Articles of War make cognizable by court-
martial), and were therefore not properly authorized to impose forfeitures of pay or
other strictly military punishments upon officers or soldiers of the Army. These
courts were in general resorted to as substitutes for the ordinary police courts of
cities, and their jurisdiction was in general confined to cases of breaches of the peace
and of violation of such civil ordinances or military regulations as might be in force
for the government of the locality. Some of these courts, however, took cognizance,
in the course of their existence, of cases of very considerable importance, civil as
well as criminal, (d) Ibid., par. 1577.
aLewis v. McGuire, 3 Bush, 202; Clark v. Dick, 1 Dillon, 8. And see Major-General Scott's order (G.
O., 395, Hdqrs. of Army, 1847) levying assessments upon Mexican communities for the support of the
military government and occupation.
6 See Hamilton v. Dillin, 21 Wallace, 73. The taking possession, by the order of the commander of
the military department at New Orleans, for the use of the military service in the prosecution of the
war, of moneys belonging to the enemies on deposit in the banks of that city, while occupied (in 1863)
by our Army, held an act justified by the strict law of war. Dig. Opin. J. A. G., par. 1575. See New
Orleans v. Steamboat Co., 20 Wallace, 394; Witherspoon v. Farmers' Bk., 2 Duvall, 497. But in Plant-
ers' Bk. v. Union Bk., 16 Wallace, 483, this particular order was held to have been an exceeding of
authority, not because unauthorized by the law of war, but for the reason that a previous commander —
General Butler— by his proclamation on first occupying the city, of May 1, 1862, had pledged the Gov-
ernment to the holding inviolate of all rights of property. And see The Venice, 2 Wallace, 258.
c " By the well-recognized principles of international law the mere military occupation of a country
by a belligerent power or a conqueror does not ipso facto displace the municipal laws. Such con-
queror or belligerent occupier may suspend or supersede them for the time being, but in the absence
of orders to that effect they remain in force." Wingfield v. Crosby, 5 Cold., 246. "Supreme military
authority in a city is not incompatible with the existence and authority of courts of civfl jurisdiction
and procedure " Pepin v Lachenmeyer, 45 N. Y., 27. And see Kimball v. Taylor, 2 Woods, 37; Rut-
ledge v. Fogg, 3 Cold., 554; Hefferman v. Porter, 6 ibid., 391; Murrell v. Jones, 40 Miss., 566; Dow v.
Johnson, post. But where the courts of a hostile country are left open by the conqueror it is only the
citizens of such country that are subject to their jurisdiction; the officers and soldiers of the occupy-
ing army are in no manner amenable to the same. This principle has recently been illustrated by
the Supreme Court in the cases of Coleman v. Tennessee, 7 Otto, 509; Dow v. Johnson, 10 Otto, 158, 166.
d While the majority of these special tribunals were confined to the exercise of such functions as
are commonly devolved upon police or justices' courts, their authprity, when empowered for the
purpose by a competent military commander, to take cognizance of important civil actions has been
affirmed by the Supreme Court of the United States in the case of Mechs. and Traders' Bk. v. Union
Bk.,22 Wallace, 276, in which a "provost court." established at New Orleans by an order of the depart-
ment commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment rendered by
it in action for the recovery of $130,000, money borrowed by one bank from another, was recognized
MILITARY LAWS OF THE UNITED STATES. 831
protection of life and property. Article 7, Treaty with
Spain of December 10, 1898 (30 Stat. L.
as legal. [See this case also in 25 La. An., 387.] [For orders establishing such tribunals, see Dig.
Opin. J. A. G., par. 1577, note 1.]
So, the authority of the "provisional court of Louisiana" (which succeeded the "provost court"
last indicated and was established by the President in an Executive order of Oct. 20, 1862) to deter-
mine a cause in admiralty was affirmed by the United States Supreme Court in The Grapeshot, 9
Wallace, 129, and later its jurisdiction in a civil action on a mortgage debt was recognized by that
tribunal in Burke v. Miltenberger, 19 Wallace,<519. [And see the same case, as Burke v. Tregree, in 22
La. An., 629.] The authority of the same court to take cognizance of a case of murder and one of
arson (as also of civil controversies) was maintained in an elaborate opinion of its judge, Hon.
C. A. Peabody (in 1865), in the cases of the United States v. Reiter & Louis, reported in 13 Am. Law
Reg., 534.
The civil jurisdiction of a similar war court — the "commission" established by the department
commander in Memphis, in ises^was similarly recognized in Hefferman v. Porter, 6 Cold., 391. And
as to the full authority of this tribunal as a substitute for the ordinary civil courts of the locality, see
also State v. Stillman, 7 Cold., 341. [But see, contra, Walsh v. Porter, 12 Heisk., 401.]
In the cases thus sustaining the action of special tribunals during the late war the courts in general
refer to the earlier and leading case of Leitensdorfer v. Webb, 20 Howard, 176, in which was affirmed
the authority of the courts established in 1846 in New Mexico as a part of the system of civil govern-
ment instituted by General Kearney, the military commandant. [With this case consult also United
States v. Rice, 4 Wheaton, 254; Cross v. Harrison, 16 Howard, 164.]
The reasoning upon which the above-cited later rulings is based is : That the authority to create
courts with a civil as well as a criminal jurisdiction in a conquered country in military occupation
attaches to the dominant power by the law of war and of nations as an incident to the power to
establish a military government; that it is not only the right, but the duty, of the conqueror to insti-
tute such courts "for the security of persons and property and for the administration of justice;"
and that, when during the late war such courts were created by commanding generals — such as the
commanders of separate departments or armies— the order of the commander was to be presumed to
be the order and act of the President.
CHAPTER XL.
PENSIONS.
Par.
2113-2115.
2116-2136.
2137-2147.
2148-2150.
2151-2154.
2155-2156.
2157-2166.
2167-2174.
2175-2177.
2178-2185.
2186-2188.
2189-2201.
The Commissioner of Pen-
sions; duties.
The general pension law.
Widows and children.
Dependent relatives.
Dependent pension law.
Pensions to army nurses.
Mexican war pensions.
Pensions for Indian wars,
1832-1842.
Pensions under special acts.
Commencement of pensions;
arrears of pension.
Increase of pensions.
Declaration and evidence in
pension cases.
Par.
2202. Removal of limitation.
2203-2211. Attorneys' fees.
2212-2231. Payment of pensions.
2232-2234. Accrued and unclaimed pen-
sions.
2235-2236. Assignments.
2237-2246. Examining boards.
2247. Inspection of agencies.
2248. Suspension of pensions; restriction
on; pensions a vested right.
2249-2252. Investigations.
2253-2256. Criminal offenses.
2257-2262. Miscellaneous provisions.
THE COMMISSIONER OF PENSIONS.
Par.
2113. The Commissioner of Pensions.
2114. Duties of the Commissioner.
Par.
2115. The Deputy Commissioner of Pen-
sions.
commissioner 2113. There shall be in the Department of the Interior
of Pensions. . . ._. .,-11
Sec. 470, B. s. a Commissioner of Pensions, who shall be appointed by
the President, by and with the advice and consent of the
Senate, and shall be entitled to receive a salary of four
thousand dollars a year.
Duties of the 2114. The Commissioner of Pensions shall perform,
C s™c?i1i°njlr's. under the direction of the Secretary of the Interior, such
duties in the execution of the various pension and bounty-
land laws as may be prescribed by the President.
2115- There sha11 be in the Department of the Interior
234,^9,' v8 17, p!a Deputy Commissioner of Pensions, who shall be ap-
57|'ec. 472, B. s. pointed by the President, by and with the advice and con-
sent of the Senate, who shall be charged with such duties
in the Pension Bureau as may be prescribed by the Secre-
tary of the Interior, or may be required by law, and in
832
°om~
MILITARY LAWS OF THE UNITED STATES.
835
case of death, resignation, absence, or sickness of the
Commissioner, his duties shall devolve upon the Deputy
Commissioner, until a successor is appointed or such ab-
sence or sickness ceases. The Deputy Commissioner shall
be entitled to receive an annual salary of twenty -five hun-
dred dollars.
THE GENERAL PENSION LAW.
Par.
2126. Total blindness.
2127. Increase of pension.
2128. Loss of leg at hip joint.
2129. Loss of arm at shoulder joint.
2130. Loss of arm or leg; increase.
2131. Loss of hand or foot.
2132. Total or partial deafness.
2133. Loss of both hands; increase.
2134. Rate for incapacity requiring con-
stant attendance.
2135. Rate for incapacity requiring fre-
quent attendance.
2136. Division of eighteen-dollar rate.
pensions.
Mar. 3, 1873, c.
234, s. 1, v. 17, pp.
Sec. 4692, B.S.
Par.
2116. Who entitled.
2117. Classes enumerated.
2118. Pensions to be for wounds, injuries,
etc., received in line of duty.
2119. Rates of pension.
2120. Pensions according to rank.
2121. Pensions for permanent specific
disabilities prior to June 4, 1872.
2122. The same, subsequent to June 4,
1872.
2123. Loss of both hands, feet, or eyes.
2124. Loss of one hand and one foot.
2125. Loss of both hands, feet, or eyes.
2116. Every person specified in the several classes enu-
merated in the following section, who has been, since the
fourth day of March, eighteen hundred and sixty-one, or
who is hereafter disabled under the conditions therein
stated, shall, upon making due proof of the fact, accord-
ing to such forms and regulations as are or may be pro-
vided in pursuance of law, be placed on the list of invalid
pensioners of the United States, and be entitled to receive,
for a total disability, or a permanent specific disability,
such pension as is hereinafter provided in such cases; and
for an inferior disability, except in cases of permanent
specific disability, for which the rate of pension is expressly
provided, an amount proportionate to that provided for
total disability; and such pension shall commence as here-
inafter provided, and continue during the existence of the
disability.1
2117. The persons entitled as beneficiaries under the pre-
ceding section are as follows:
First. Any officer of the Army, including regulars, vol-
unteers, and militia, or any officer in the Navy or Marine J£^
Corps, or any enlisted man, however employed, in the mili-
tary or naval service of the United States, or in its Marine
aThe act of March 3, 1883, 23 Stat. L., 362, contains the requirements that " all
applicants for pension shall be presumed to have had no disability at the time of enlist-
ment, but such presumption may be rebutted."
22924—08 53
Classes enu
merated.
Ibid.
Sec. 4693,B.S.
834 MILITARY LAWS OF THE UNITED STATES.
Corps, whether regularly mustered or not, disabled by
reason of any wound or injury received, or disease con-
tracted, while in the service of the United States and in
the line of duty.
serving* on |un- Second. Any master serving on a gunboat, or any pilot,
boat, etc. engineer, sailor, or other person not regularly mustered,
serving upon any gunboat or war vessel of the United
States, disabled by any wound or injury received, or other-
wise incapacitated while in the line of duty, for procuring
his subsistence by manual labor.
Third. Any person not an enlisted soldier in the Army,
serving for the time being as a member of the militia of
any State, under orders of an officer of the United States,
or who volunteered for the time being to serve with any
regularly organized military or naval force of the United
States, or who otherwise volunteered and rendered service
in any engagement with rebels or Indians, disabled in con-
sequence of wounds or injury received in the line of duty
in such temporary service. But no claim of a State militia-
man, or nonenlisted person, on account of disability from
wounds, or injury received in battle with rebels or Indians,
while temporarily rendering service, shall be valid unless
prosecuted to a successful issue prior to the fourth day of
July, eighteen hundred and seventy-four.
Fourth. Any acting assistant or contract surgeon disabled
by any wound or injury received or disease contracted in
the line of duty while actually performing the duties of
assistant surgeon or acting assistant surgeon with any
military force in the field, or in transitu, or in hospital.
Fifth. Any provost-marshal, deputy provost-marshal, or
enrolling officer disabled, by reason of any wound or injury
received in the discharge of his dut}^ to procure a subsist-
ence by manual labor.
woundlreceived ^118% ^° Person sna^ De entitled to a pension by reason
trarteToni c°in °^ wouncls or in]ury received or disease contracted in the
"negf d£ty, etc. service of the United States subsequent to the twenty-
sec. 4694, B.S. seventh day of July, eighteen hundred and sixty-eight,
unless the person who was wounded, or injured, or con-
tracted the disease was in the line of duty, and, if in the
military service, was at the time actually in the field, or on
the march, or at some post, fort, or garrison, or en route,
by direction of competent authority, to some post, fort, or
garrison; or, if in the naval service, was at the time borne
on the books of some ship or other vessel of the United
States, at sea or in harbor, actually in commission, or was
MILITARY LAWS OF THE UNITED STATES. 835
at some naval station, or on his way, by direction of com-
petent authority, to the United States or to some other
vessel or naval station or hospital. (
2119. The pension for total disability shall be as follows, Rates of pen-
_ ,. TT i 11 /T> f i • i sion for total dis-
namely: For lieutenant-colonel and all officers or higher ability,
rank in the militaiy service and in the Marine Corps, and 567.
for captain, and all officers of higher rank, commander,
sugeon, paymaster, and chief engineer, respectively rank-
ing with commander by law, lieutenant commanding and
master commanding, in the naval service, thirty dollars per
month; for major in the military service and in the Marine
Corps, and lieutenant, surgeon, paymaster, and chief engi-
neer, respectively ranking with lieutenant by law, and
passed assistant surgeon in the naval service, twenty -five
dollars per month; for captain in the military service and
in the Marine Corps, chaplain in the Army, and provost-
marshal, professor of mathematics, master, assistant sur-
geon, assistant paymaster, and chaplain in the naval
service, twenty dollars per month; for first lieutenant in
the military service and in the Marine Corps, acting
assistant or contract surgeon, and deputy provost-marshal,
seventeen dollars per month; for second lieutenant in the
military service and in the Marine Corps, first assistant
engineer, ensign, and pilot in the naval service, and
enrolling officer, fifteen dollars per month ; for cadet mid-
shipman, passed midshipman, midshipmen, clerks of admi-
rals and paymasters and of other officer commanding
vessels, second and third assistant engineer, master's mate,
and all warrant officers in the naval service, ten dollars per
month; and for all other persons whose rank or office is
not mentioned in this section, eight dollars per month; and
the masters, pilots, engineers, sailors, and crews upon the
gunboats and war vessels shall be entitled to receive the
pension allowed herein to those of like rank in the naval
service.1
2120. Every commissioned officer of the Army, Navy, or Pension ac-
i\T • /^ in • i -i i i • cording to rank.
Marine Corps shall receive such and only such pension as ibid.
^p« -ifi*Mi R s
is provided in the preceding section for the rank he held
at the time he received the injury or contracted the disease
which resulted in the disability, on account of which he
may be entitled to a pension ; and any commission or Presi-
dential appointment, regularly issued to such person, shall
be taken to determine his rank from and after the date, as
1 By section 4692, Revised Statutes (paragraph 2116, ante), an inferior disability
shall be rated in proportion to that for total disability.
836 MILITAEY LAWS OF THE UNITED STATES.
given in the body of the commission or appointment con-
ferring said rank: Provided, That a vacancy existed in the
rank thereb}7 conferred; that the person commissioned was
not disabled for military duty, and that he did not willfully
neglect or refuse to be mustered.
permanent lSl 2121> For tne period commencing July fourth eighteen
prio? to jSS1? hundred and sixty-four, and ending June third, eighteen
18slc 3 md p hundred and seventy-two, those persons entitled to a less
^leb. 28, 1877, c. Pensi°n than hereinafter mentioned, who shall have lost
?s. k°th ^eet i*1 the military or naval service and in the line
of duty, shall be entitled to a pension of twenty dollars
per month; for the same period those persons who, under
like circumstances, shall have lost both hands * or the sight
of both eyes, shall be entitled to a pension of twenty-five
dollars per month; and for the period commencing March
third, eighteen hundred and sixty -five, and ending June
third, eighteen hundred and seventy-two, those persons
who under like circumstances shall have lost one hand and
one foot, shall be entitled to a pension of twenty dollars
per month; and for the period commencing June sixth,
eighteen hundred and sixty -six, and ending June third,
eighteen hundred and seventy-two, those persons who
under like circumstances shall have lost one hand or one
foot, shall be entitled to a pension of fifteen dollars per
month; and for the period commencing June sixth, eighteen
hundred and sixty-six, and ending June third, eighteen
hundred and seventy-two, those persons entitled to a less
pension than hereinafter mentioned, who by reason of injury
received or disease contracted in the military or naval serv
ice of the United States and in the line of duty, shall have
been permanently and totally disabled in both hands, or
who shall have lost the sight of one eye, the other having
been previously lost, or who shall have been otherwise so
totally and permanently disabled as to render them utterly
helpless, or so nearly so as to require regular personal aid
and attendance of another person, shall be entitled to a
pension of twenty-five dollars per month; and for the same
period those who under like circumstances shall have been
totally and permanently disabled in both feet, or in one
hand and one foot, or otherwise so disabled as to be inca-
pacitated for the performance of any manual labor, but
not so much as to require regular personal aid and atten-
tion, shall be entitled to a pension of twenty dollars per
month; and for the same period all persons who under like
circumstances shall have been totally and permanently dis-
MILITARY LAWS OF THE UNITED STATES. 837
abled in one hand, or one foot, or otherwise so disabled as
to render their inability to perform manual labor equiva-
lent to the loss of a hand or foot, shall be entitled to a
pension of fifteen dollars per month.
2122. From and after June fourth, eighteen hundred permanent spe-
and seventy-two, all persons entitled }jy law to a less pe
sion than hereinafter specified, who, while in the military 234* s
or naval service of the United States, and in line of duty,
shall have lost the sight of both eyes, or shall have lost the ^ Vis *?\'s c"
sight of one eye, the sight of the other having been pre- Sec-46™, B-s-
viously lost, or shall have lost both hands, or shall have
lost both feet, or been permanently and totally disabled
in the same, or otherwise so permanently and totally dis-
abled as to render them utterly helpless, or so nearly so
as to require the regular personal aid and attendance of
another person, shall be entitled to a pension of thirty-one
dollars and twenty -five cents per month;1 and all persons
who, under like circumstances, shall have lost one hand
and one foot, or been totally and permanently disabled in
the same, or otherwise so disabled as to be incapacitated
for performing any manual labor, but not so much as to
require regular personal aid and attendance, shall be enti-
tled to a pension of twenty-four dollars per month; and
all persons who, under like circumstances, shall have lost
one hand, or one foot, or been totally and permanently dis-
abled in the same, or otherwise so disabled as to render
their incapacity to perform manual labor equivalent to the
loss of a hand or foot, shall be entitled to a pension of
eighteen dollars per month:2 Provided, That all persons
who, under like circumstances, have lost a leg above the
knee, and in consequence thereof are so disabled that they
can not use artificial limbs, shall be rated in th'e second
class and receive twenty-four dollars per month from and
after June fourth, eighteen hundred and seventy-two; and
all persons who, under like circumstances, shall have lost
the hearing of both ears, shall be entitled to a pension of
thirteen dollars per month from the same date : 3 Provided,
That the pension for a disability therein mentioned to be
1 Increased to fifty dollars by the act of June 18, 1874 (18 Stat. L., 78), and to
seventy-two dollars by the act of June 17, 1878 (20 ibid., 144), and June 16, 1880
(21 ibid., 281), and to one hundred dollars in certain cases (loss of both hands) by
the act of February 12, 1889 (25 ibid., 659), paragraphs 2123, 2125, and 2127, post.
"Increased by the act of February 28, 1877 (19 Stat. L., 264), and to twenty-four
and thirty dollars per month by the act of March 3, 1883 (22 ibid., 453), and to
thirty-six and forty-five dollars per month by the act of August 4, 1886 (24 ibid., 220),
paragraphs 2124, 2130, and 2131, post.
8 Increased to thirty dollars by the act of August 27, 1888 (25 Stat. L., 449), para-
graph 2132, post.
838 MILITABY LAWS OF THE UNITED STATES.
proportionately divided for any degree of disability estab-
lished for which section forty-six hundred and ninety -five
makes no provision. Act of August 4, 1886 (24 Stat. Z.,
^increase of 2123. That section 4, of the act approved March 3, 1873,
i8Jpn7818'1874>v' *>e so amended that all persons who, while in the military
service of the United States and in the line of duty, shall
have been so permanently and totally disabled as to require
the regular personal aid and attendance of another person
by the loss of the sight of both eyes, or by the loss of the
sight of one eye, the sight of the other having been pre-
viously lost, or by the loss of both hands, or by the loss
of both feet, or by an injury resulting in total and perma-
nent helplessness, shall be entitled to a pension of $50 1
per month; arid this shall be in lieu of a pension of $31.25
per month granted to such person by said section. Act
of June 18, 181 '4 (18 Stat. Z., 78).
Restriction. The increase of pension shall not be granted by reason
June 18, 1874, v. . . . , . .„ , , T,
is, p. 78. of any injuries herein specified unless the same have re-
sulted in permanent helplessness requiring the regular
personal aid and attendance of another person. Ibid.
io£eSfSio°nneShlSd 2124- A11 persons who, while in the military or naval
anpebn28f 1877 v service of the United States, and in the line of duty, shall
19, p. 264. have lost one hand and one foot, or been totally and perma-
nently disabled in both, shall be entitled to a pension for
each of such disabilities, and at such a rate as is provided
for by the provisions of the existing laws for each disabil-
ity: Provided, That this act shall not be so construed as
to reduce pensions in any case. Act of February 28, 1877
(19 Stat. Z.,264).
ioP8CsnSo0fnboft°h 2125> On anc* a^ter ^e passage of this act, all soldiers
hands, feet, or an(j sajlOrs who have lost either both their hands or both
a/p^"1/'1878'^ their feet or the sight of both eyes in the service of the
United States, shall receive, in lieu of all pensions now
paid them by the Government of the United States, and
there shall be paid to them, in the same manner as pen-
sions are now paid to such persons, the sum of seventy-
two dollars per month. Act of June 17, 1878 (W Stat. L. ,
w-
For total blind- 2126. That the act of June seventeenth, eighteen hun-
20Mar484' 18?9' v' ^rec^ an(^ seventy-eight, entitled ' c An act to increase the
pensions of certain soldiers and sailors who have lost both
1 Increased to seventy-two dollars per month by the act of June 16, 1880 (31 Stat.
L., 281). This act became operative on June 4, 1874. Sec. 2, act of June 18, 1874
(18 Stat. L., 78).
I
MILITARY LAWS OF THE UNITED STATES. 839
their hands or both their feet, or the sight of both eyes, iii
the service of the country," be so construed as to include
all soldiers and sailors who have become totally blind from
causes occurring in the service of the United States. Act
of March 3, 1879 (20 Stat. Z., %84).
2127. All soldiers and sailors who are now receiving a peIn^Jease of
pension of fifty dollars per month, under the provisions of 2i^2si' 1880' v'
an act entitled "An act to increase the pension of soldiers
and sailors who have been totally disabled," approved June
eighteenth, eighteen hundred and seventy-four, shall re-
ceive, in lieu of all pensions now paid them by the Gov-
ernment of the United States, and there shall be paid them
in the same manner as pensions are now paid to such per-
sons, the sum of seventy-two dollars per month.1 Act of
June 16, 1880 (21 Stat. Z., 281).
2128. All pensioners now on the pension rolls, or who le^athipVointof
may hereafter be placed thereon, for amputation of either 20Mpar483' 1879' v*
leg at the hip joint, shall receive a pension at the rate of
thirty-seven dollars and fifty cents per month from the
date of the approval of this act. Act of March 3, 1879
(20 Stat. L.,483).
2129. All soldiers and sailors of the United States who^oss of .arm at
have had an arm taken off at the shoulder joint, caused by 23Mar437' 1885' v'
injuries received in the service of their country while in
the line of duty, and who are now receiving pensions, shall
have their pensions increased to the same amount that the
law now gives to soldiers and sailors who have lost a leg
at the hip joint; and this act shall apply to all who shall
be hereafter placed on the pension roll. Act of March 3,
1885 (23 Stat. Z., 437).
2130. From and after the passage of this act all persons pennon6 of6 soi-
on the pension roll, and all persons hereafter granted a whohave lost an
pension, who, while in the military or naval service of the armorieginserv-
United States, and in the line of duty, shall have lost one 22^453' 1883> v'
hand or one foot, or been totally or permanently disabled
in the same, or otherwise so disabled as to render their
incapacity to perform manual labor equivalent to the loss
of a hand or a foot, shall receive a pension of twenty-four
dollars per month; that all persons now on the pension
roll, and all persons hereafter granted a pension, who in
like manner shall have lost either an arm at or above theab^|se5>bf0^r™
elbow, or a leg at or above the knee, or shall have beenj£fe(fbove the
Section 2 of the act of June 16, 1880 (21 Stat. L., 281), contained the requirement
that persons therein entitled to increase of pension should be paid the difference
between the sums above mentioned from June 17, 1878, to June 16, 1880.
840 MILITARY LAWS OF THE UNITED STATES.
otherwise so disabled as to be incapacitated for performing
any manual labor, but not so much as to require regular
personal aid and attendance, shall receive a pension of
thirty dollars per month : Provided^ That nothing contained
in this act shall be construed to repeal section forty-six
hundred and ninety-nine of the Revised Statutes of the
United States, or to change the rate of eighteen dollars per
month therein mentioned to be proportionately divided for
any degree of disability established for which section forty-
six hundred and ninety -five makes no provision.1 Act of
March 3, 1883 (22 Stat. L., 453).
crS)ed0ns> in 2131. From and after the passage of this act all persons
^Lossofhandoron faQ pension rolls, and all persons hereafter granted a
24Apg22o 1886' v' Pension, who, while in the military or naval service of
the United States, and in line of duty, shall have lost one
hand or one foot, or been totally disabled in the same, shall
receive a pension of thirty dollars a month; that all per-
sons now on the pension rolls, and all persons hereafter
or^bove enx>\r £ran^e(^ a Pensi°n5 who in like manner shall have lost
Leneeat or above e^ner an arm a^ or above the elbow or a leg at or above
the knee,2 or been totally disabled in the same, shall receive
a pension of thirty-six dollars per month; and that all
persons now on the pension rolls, and all persons hereafter
should er ™ at granted a pension, who in like manner shall have lost
MP- either an arm at the shoulder joint or a leg at the hip joint,
or so near the joint as to prevent the use of an artificial
limb, shall receive a pension at the rate. of forty-five dol-
p R9iS5M Snot46re- ^ars Per month: Provided, That nothing contained in this
pealed. acj. sha}} ke construed to repeal section forty-six hundred
and ninety-nine1 of the Revised Statutes of the United
States, or to change the rate of eighteen dollars per month
therein mentioned to be proportionately divided for any
degree of disability established for which section f ort}r-six
hundred and ninety-five makes no provision. Act of
August 4, 1886 (24 Stat. L., 220).
nJf-nc£Ledaf" 2132. From and after the passage of this act all persons
25Apg449?> 1888>Y' on the Pensi°n r°Us °f tne United States, or who may
hereafter be thereon, drawing pensions on account of loss
of hearing, shall be entitled to receive, in lieu of the
amount now paid in case of such disability, the sum of
thirty dollars, in cases of total deafness, and such pro-
portion thereof in cases of partial deafness as the Secre-
tary of the Interior may deem equitable; the amount paid
1 Paragraph 2136, post.
MILITAEY LAWS OF THE UNITED STATES. 841
to be determined by the degree of disability existing in
each case. Act of August 27, 1888 (25 Stat. Z., 449).
2133. From and after the passage of this act all persons l
who, in the military or naval service of the United
and in the line of duty, have lost both hands, shall be enti- 25' p- 659-
tied to a pension of one hundred dollars per month. Act
of February 12, 1889 (25 Stat. Z., 669).
2134. All soldiers, sailors, and marines who have since taiiyChetpiesssoi-
the sixteenth day of June, eighteen hundred and eighty, diMjre4C>1890 v.
or who may hereafter become so totally and permanently 26vP'2}f p. 281.
helpless from injuries received or disease contracted in the
service and line of duty as to require the regular personal
aid and attendance of another person, or who, if otherwise
entitled, were excluded from the provisions of "An act to
increase pensions of certain pensioned soldiers and sailors
who are utterly helpless from injuries received or disease
contracted while in the United States service," approved
June sixteenth, eighteen hundred and eighty, shall be enti-
tled to receive a pension at the rate of seventy-two dollars
per month from the date of the passage of this act or of
the certificate of the examining surgeon or board of sur-
geons showing such degree of disability made subsequent
to the passage of this act. Act of March 4, 1890 (26 Stat.
Z, 16).
2135. Soldiers and sailors who are shown to be totally ta§yt
incapacitated for performing manual labor bv reason of frequ'
injuries received or disease contracted in the service of ai^-y 14 1892 v
the United States and in line of duty, and who are27»p-149-
thereby disabled to such a degree as to require frequent
and periodical, though not regular and constant, personal
aid and attendance of another person, shall be entitled to
receive a pension of fifty dollars per month from and after
the date of the certificate of the examining surgeon or
board of examining surgeons showing such degree of disa-
bility, and made subsequent to the passage" of this act.
Act of July 14, 1892 (27 Stat. Z., 149).
2136. The rate of eighteen dollars per month may be pro- di^eanbm|y not
portionately divided for any degree of disability established ^!Jf<?re pr°
for which section forty -six hundred and ninety-five makes 234^5' vi?8?7 569*
no provision. 1 s'ec.ieW, B.S.'
acts of March 3, 1883 (22 Stat. L., 453), and August 4, 1886 (24 Ibid., 220),
paragraphs 2130 and 2131, ante.
842
MILITARY LAWS OF THE UNITED STATES.
WIDOWS AND CHILDREN.
Par.
2137. Widows and children.
2138. Increase of pension for same.
2139. The same.
2140. Claim agent not recognized.
2141. To commence at death of husband.
2142. Proof of marriage, Indians and col-
ored soldiers.
2143. Proof of marriage in general.
Par.
2144. Abandonment of children by
widow.
2145. Dependent widow and minor child-
ren.
2146. Widow not to receive pension for
same period as husband.
2147. Restriction on widow's pension.
2137. If any person embraced within the provisions of
and sections forty -six hundred and ninety -two1 and forty-six
22Apg345.1882' v' nundred and ninety-three1 has died since the fourth day of
Sec. 4702,R.s. March, eighteen hundred and sixty -one, or hereafter dies,
by reason of any wound, injury, or disease which under
the conditions and limitations of such sections would have
entitled him to an invalid pension had he been disabled, his
widow, or if there be no widow, or in case of her death
without payment to her of any part of the pension herein-
after mentioned, his child or children under sixteen years
of age, shall be entitled to receive the same pension as the
husband or father would have been entitled to had he been
totally disabled, to commence from the death of the hus-
band or father, to continue to the widow during her widow-
hood, and to his child or children until they severally attain
the age of sixteen years, and no longer; and if the widow
remarry, the child or children shall be entitled from the
date of remarriage, except when such widow has continued
to draw the pension money after her remarriage, in contra-
vention of law, and such child or children have resided
with and been supported by her, their pension will com-
mence at the date to which the widow was last paid.2 Act
of August 7, 1888 (%2 Stat. Z., Slfi).
w"" 2138> The pensions of widows shall be increased from
sec 4708 R s anc^ after the twenty-fifth day of July, eighteen hundred
and sixty-six, at the rate of two dollars per month for each
child under the age of sixteen years of the husband on ac-
count of whose death the claim has been, or shall be, granted.
And in every case in which the deceased husband has left,
or shall leave, no widow, or where hte widow has died or
married again, or where she has been deprived of her pen-
sion under the provisions of the pension law, the pension
et
Paragraphs 2116 and 2117, ante.
2 Amended by act of March 19, 1886 (24 Stat. L., 5).
(21 Stat. L., 170), and June 7, 1888 (25 Stat. L., 173).
See also acts of June 9, 1880
MILITARY LAWS OF THE UNITED STATES. 843
granted to such child or children shall be increased to the
same amount per month that would be allowed under the
foregoing provisions to the widow if living and entitled to
a pension: Provided, That the additional pension herein
granted to the widow on account of the child or children
of the husband by a former wife shall be paid to her only
for such period of her widowhood as she has been, or shall
be, charged with the maintenance of such child or children;
for any period during which she has not been, or she shall
not be, so charged it shall be granted and paid to the
guardian of such child or children : Provided further, That
a widow or guardian to whom increase of pension has been,
or shall hereafter be, granted on account of minor children
shall not be deprived thereof by reason of their being main-
tained in whole or in part at the expense of a State or the
public in any educational institution or in any institution
organized for the care of soldiers' orphans.
2139. From and after the passage of this act the rate of pen^l towid-
pension for widows, minor children, and dependent rela- entsSiatfvee^end
tivefe now on the pension roll, or hereafter to be placed on 24Ma5 19> 1886' v-
the pension roll, and entitled to receive a less rate than
hereinafter provided, shall be twelve dollars per month;
and nothing herein shall be construed to affect the existing
allowance of two dollars per month for each child under
the age of sixteen years: Provided, That this act shall
apply only to widows who were married to the deceased
soldier or sailor prior to its passage and to those who may
hereafter marry prior to or during the service of the soldier
or sailor. And all acts or parts of acts inconsistent with
the provisions of this act are hereby repealed.1 Section 1,
act of March 19, 1886 (24 Stat. L., 5).
2140. No claim agent or attorney shall be recognized in no^timbe ^fg}18
the adjudication of claims under this act, nor shall anyni||^2 ibid
such person be entitled to receive any compensation what-
ever for services or pretended services in making applica-
tions thereunder. Sec. 2, ibid.
2141. All pensions which have been, or which m&y here- si<^gd°toS> da?e
after be, granted under the general laws regulating pen- hrSandeath °f
sions to widows in consequence of death occurring from a 25Jpnm' 1888> v'
cause which originated in the service since the fourth day
of March, eighteen hundred and sixty -one, shall commence
from the date of death of the husband. Act of June 7,
1888(25 Stat. L., 173}.
l See in this connection paragraph 2145, post; section 3, act of May 9, 1900 (31 Stat.
I*, 171).
844 MILITARY LAWS OF THE UNITED STATES.
oredaSdBindiMi" 2142> ^he widows of colored and Indian soldiers and
sail°rs who have died, or shall hereafter die, by reason of
wounds or injuries received, or casualty received, or dis-
ease contracted, in the military or naval service of the
United States, and in the line of duty, shall be entitled to
receive the pension provided by law without other evidence
of marriage than satisfactory proof that the parties were
joined in marriage by some ceremony deemed by them
obligatory, or habitually recognized each other as man and
wife, and were so recognized by their neighbors, and lived
together as such up to the date of enlistment, when such
soldier or sailor died in the service, or, if otherwise, to
date of death; and the children born of any marriage so
proved shall be deemed and held to be lawful children of
such soldier or sailor, but this section shall not be appli-
cable to any claims on account of persons who enlist after
the third day of March, one thousand eight hundred and
seventy-three.
Marriages to 2143. Marriages, except such as are mentioned in sec-
marriages unf er tion forty-seven hundred and five of the Revised Statutes,
lasec.e2j'Aug. 7, shall be proven in pension cases to be legal marriages
882, v.22, p. 345. accor(jing to ^e }aw of j^e p}ace where the parties resided
at the time of marriage or at the time when the right to
pension accrued; and the open and notorious adulterous
cohabitation of a widow who is a pensioner shall operate
to terminate her pension from the commencement of such
cohabitation. Sec. 2, act of August 7, 1888 (22 Stat. Z.,
Abandonment, 2144. If any person has died, or shall hereafter die,
etc., by widow. . . , . , , , ., , .
sec.4706, R.s. leaving a widow entitled to a pension by reason of his
death, and a child or children under sixteen years of age
by such widow, and it shall be duly certified under seal
by any court having probate jurisdiction, that satisfactory
evidence has been produced before such court, upon due
notice to the widow, that she has abandoned the care of
such child or children, or that she is an unsuitable person,
by reason of immoral conduct, to have the custody of the
same, on presentation of satisfactory evidence thereof to
the Commissioner of Pensions, no pension shall be allowed
to such widow until such child or children shall have
attained the age of sixteen years, any provisions of law to
the contrary notwithstanding; and the said child or chil-
dren shall be pensioned in the same manner, and from the
same date, as if no widow had survived such person, and
such pension shall be paid to the guardian of such child or
MILITARY LAWS OF THE UNITED STATES. 845
children; but if in any case payment of pension shall have
been made to the widow, the pension to the child or chil-
dren shall commence from the date to which her pension
has been paid.
2145. If any officer or enlisted man who served ninety Dependent
days or more in the Army or Navy of the United States nor children.
during the late war of the rebellion, and who was honor-
ably discharged, has died, or shall hereafter die, leaving a
widow without other means of support than her daily labor, widow.
and an actual net incom e not exceeding two hundred and fifty
dollars per year, or minor children under the age of sixteen Minor cMi-
years, such widow shall, upon due proof of her husband's
death, without proving his death to be the result of his army Proof of hus-
J 0. n £ ±u J i ., ,UJ band's death.
service, be placed on the pension roll from the date of the
application therefor under this act, at the rate of eight
dollars per month during her widowhood, and shall also Rate during
be paid two dollars per month for each child of such officer
or enlisted man under sixteen years of age, and in case of Rate for each
,1 , ,, . _- ,, J . , ' . ,., -, minor child.
the death or remarriage of the widow, leaving a child or Death or re-
children of such officer or enlisted man under the age of ^rnage of wld~
sixteen years, such pension shall be paid such child or 2, ^.Yi.Vm.' s'
children until the age of sixteen: Provided, That in case provisos.
a minor child is insane, idiotic, or otherwise permanently
helpless, the pension shall continue during the life of said continuing
. .f , , . . i /. T • !• pension to minor
child, or during the period of such disability, and this pro- child during Per-
, ,, . manent disa-
viso shall apply to all pensions heretofore granted orbmty.
hereafter to be granted under this or anv former statute, Application to
. * J, ' all pensions.
and such pensions shall commence from the date of appli- commence-
cation therefor, after the passage of this act: And provided™
further. That said widow shall have married said soldier Limit as to time
of marriage.
prior to the passage of the said act of June 27, 1890. *
Sec. 3, act of May 9, 1900 (31 Stat. Z., 171).
2146. No pension shall be granted to a widow for the f^S5*1011-
same time that her husband received one.
2147. Hereafter no pension under any law of the United Restriction on
States shall be granted, allowed, or paid to the widow of Skna^ridSwi!
a soldier, sailor, officer, naval or military, marine, marine 3ofpari379.18"' v'
officer, or any other male person entitled to a pension
under any law of the United States, unless it shall be
proved and established that the marriage of such widow
to the soldier, sailor, officer, marine, or other person on
account of whose service the pension is asked, was duly
and legally contracted and entered into prior to the pas-
sage of this act, or unless such wife shall have lived and
cohabited with such soldier, sailor, officer, marine, marine
846 MILITARY LAWS OF THE UNITED STATES.
officer, or other person continuously from the date of the
marriage to the date of his death, or unless the marriage
shall take place hereafter and prior to or during the mili-
tary or naval service of the soldier, sailor, officer, marine,
or other person on account of whose service the pension
is asked or claimed. This proviso shall not apply to or
affect the widow of any soldier, sailor, marine, officer, or
marine officer serving or who has served in the war
between the United States and the Kingdom of Spain.
In all cases the questions o'f desertion, entrance into a
home, necessitous circumstances, and of good moral char-
acter shall be ascertained and determined by the Commis-
sioner of Pensions under such rules and regulations as he
shall prescribe, and the treasurers or governors of the
several soldiers' and sailors' homes shall be advised of such
action from time to time. l Act of March 3, 1899 (30 Stat.
L., 1379).
DEPENDENT RELATIVES.
Par.
2148. Succession of dependent relatives.
2149. Remarriage of widow.
Par.
2150. Dependent parents.
dep"nCden°nreia- 2148. If any person embraced within the provisions of
^Mar 3 1873 s sec^ions forty-six hundred and ninety-two and forty-six
^Sec.^o^R.'s. hundred and ninety-three has died since the fourth day of
March, eighteen hundred and sixty-one, or shall hereafter
die, by reason of any wound, injury, casualty, or disease,
which, under the conditions and limitations of such sec-
tions, would have entitled him to an invalid pension, and
has not left or shall not leave a widow or legitimate child,
but has left or shall leave other relative or relatives who
were dependent upon him for support, in whole or in part,
at the date of his death, such relative or relatives shall be
entitled, in the following order of precedence, to receive
the same pension as such person would have been entitled
to had he been totally disabled, to commence from the death
of such person, namely: First, the mother; secondly, the
father; thirdly, orphan brothers and sisters under sixteen
^or the remainder of this statute see the Title "The Dependent Pension Law,"
paragraphs 2151 to 2154, post. For a restriction on attorneys' fees in claims to pen-
sion under this act, see section 4, act of June 27, 1890 (26 Stat. L., 181). This section
replaces section 3, act of June 27, 1890, and is amendatory thereof; it also excepts
all cases falling within its scope from the operation of the act of June 7, 1888 (25 Stat.
L., 173), paragraph 2141, ante. See also the act of March 3, 1901 (31 Stat. L., 1445),
par. 2149, post.
MILITARY LAWS OF THE UNITED STATES. 847
years of age, who shall be pensioned jointly: Provided,
That where orphan children of the same parent have differ-
ent guardians, or a portion of them only are under guard-
ianship, the share of the joint pension to which each ward
shall be entitled shall be paid to the guardian of such
ward: Provided, That if in any case said person shall have
left father and mother who were dependent upon him,
then, on the death of the mother, the father shall become
entitled to the pension, commencing from and after the
death of the mother; and upon the death of the mother
and father, or upon the death of the father and the remar-
riage of the mother, the dependent brothers and sisters
under sixteen years of age shall jointly become entitled
to such pension until they attain the age of sixteen years,
respectively, commencing from the death or remarriage
of the party who had the prior right to the pension:
Provided, That a mother shall be assumed to have been
dependent upon her son within the meaning of this sec-
tion if, at the date of his death, she had no other adequate
means of support than the ordinary proceeds of her own
manual labor and the contributions of said son or of any
other persons not legally bound to aid in her support; and
if, by actual contributions, or in any other way, the son
had recognized his obligations to aid in support of his
mother, or was by law bound to such support, and that a
father or minor brother or sister shall, in like manner and
under like conditions, be assumed to have been dependent,
except that the income which was derived or derivable
from his actual or possible manual labor shall be taken
into account in estimating a father's means of independent
support: Provided further, That the pension allowed to
any person on account of his or her dependence, as here-
inbefore provided, shall not be paid for any period during
which it shall not be necessary as a means of adequate
subsistence.
2149. The remarriage of any widow, dependent mother, Remarriage of
or dependent sister entitled to pension shall not bar her Mar. 3,1 901, v.
right to such pension to the date of her remarriage, sec.4708,B.s.
whether an application therefor was filed before or after
such marriage; but on the remarriage of any widow,
dependent mother, or dependent sister having a pension,
such pension shall cease: Provided, however, That any
widow who was the lawful wife of any officer or enlisted
man in the Army, Navy, or Marine Corps of the United
States, during the period of his service in any war, and
848 MILITARY LAWS OF THE UNITED STATES.
whose name was placed or shall hereafter be placed on the
pension roll because of her husband's death as the result
of wound or injury received or disease contracted in such
military or naval service, and whose name has been or
shall hereafter be dropped from said pension roll by
reason of her marriage to another person who has since
died or shall hereafter die, or from whom she has been
heretofore or shall be hereafter divorced, upon her own
application and without fault on her part, and if* she is
without means of support other than her daily labor as
denned by the acts of June twenty -seventh, eighteen
hundred and ninety, and May ninth, nineteen hundred,
shall be entitled to have her name again placed on the pen-
sion roll at the rate now provided for widows by the acts
of July fourteenth, eighteen hundred and sixty-two, March
third, eighteen hundred and seventy-three, and March
nineteenth, eighteen hundred and eigthy-six, such pension
to commence from the date of the filing of her application
in the Pension Bureau after the approval of this act: And
provided further, That where such widow is already in
receipt of a pension from the United States she shall not
be entitled to restoration under this act: And provided
further, That where the pension of said widow on her sec-
ond or subsequent marriage has accrued to a helpless or
idiotic child, or a child or children under the age of sixteen
years, she shall not be entitled to restoration under this act
unless said helpless or idiotic child, or child or children
under sixteen years of age, be then a member or members
of her family and cared for by her, and upon the restora-
tion of said widow the payment of pension to said child or
children shall cease. Act of March 3, 1901 (31 Stat. Z.,
sec. 2, ibid. No claim agent or other person shall be entitled to receive
any compensation for services in making application for
pension under this act. Section #, ibid.
Disability, etc., 2150. In considering the pension claims of dependent
taS^Sil^ereand parents, the fact of the soldier's death by reason of any
iliiSen^nddl^01111^' iniulT> casualty, or disease, which, under the con-
pendent parents, ditions and limitations of existing laws, would have enti-
Sfent8 arentl" ^e(^ ^im *° an inva^ pension, and the fact that the soldier
left no widow or minor children having been shown as
Evidence re- i -i
qtj£ne' 27 1890 re<luired *by law, it shall be necessary only to show by com-
v. 26, p. 182. ' petent and sufficient evidence that such parent or parents
are without other present means of support than their own
manual labor or the contributions of others not legally
MILITARY LAWS OF THE UNITED STATES.
849
bound for their support: Provided, That all pensions commence-
• in ment and eon-
allowed to dependent parents under this act shall commence tmuance of pen-
from the date of the filing of the application hereunder,
and shall continue no longer than the existence of the
dependence. Sec. 1, act of June 27, 1890 (26 Stat. L. , 182).
THE DEPENDENT PENSION LAW.
Par.
2153. Fees of attorneys.
2154. Commencement of pension.
>rtionate
Par.
2151. Pension to dependent soldiers.
2152. Missouri militia included.
2151. All persons who served ninety days or more in the
military or naval service of the United States during
late war of the rebellion and who have been honorably dis- wareof rebellion!
charged therefrom, and who are now or who may here- s^^fo.1900' v>
after be suffering from a mental or physical disability, or
disabilities of a permanent character, not the result of their
own vicious habits, which incapacitates them from the per-
formance of manual labor in such a degree as to render
them unable to earn a support, shall, upon making due Due proof, etc.
proof of the fact according to such rules and regulations
as the Secretary of the Interior may provide, be placed
upon the list of invalid pensioners of the United States,
and be entitled to receive a pension not exceeding twelve mJJam^m^Sj
dollars per month, and not less than six dollars per month, Proporti
proportioned to the degree of inability to earn a support ;inability-
and in determining such inability, each and every infirmity
shall be duly considered, and the aggregate of the disabil-
ities shown be rated, and such pension shall commence from com m ence-
7 r ment and con-
the date of the filing of the application in the Pension Office, tinuance.
after the passage of this act upon proof that the disability
then existed, and shall continue during the existence of the
same: Provided, That persons who are now receiving pen-
sions under existing laws, or whose claims are pending in
the Bureau of Pensions, may, by application to the Com-
missioner of Pensions, in such form as he may prescribe,
showing themselves entitled thereto, receive the benefits
of this act; and nothing herein contained shall be so con- Pensioners en-
titled under this
strued as to prevent any pensioner thereunder from prose-
cuting his claim and receiving his pension under any other *ner benefits.
general or special act: Provided, however, That no person
shall receive more than one pension for the same period:
And provided further, That rank in the service shall not nosteJoics!dered
be considered in applications filed under this act.1 Sec. 2,
act of May 9, 1900 (31 Stat. L., 170).
section replaces section 2, act of June 27, 1890 (26 Stat. L., 182).
22924—08 54
850 MILITARY LAWS OF THE UNITED STATES.
ti Missouri miii- 2152. The provisions of the act of June twenty-seventh,
j. R. NO. is, eighteen hundred and ninety, are hereby extended to
Feb. 15, 1895, v. . , •, ,
28, p. 970. include the officers and privates of the Missouri State mili-
tia and the Provisional Missouri militia who served ninety
days during the late war of the rebellion, and were honor-
ably discharged, and to the widows and minor children of
such persons. The provisions of this act shall include all
such persons now on the pension rolls, or who may here-
after apply to be admitted thereto. Joint Resolution No.
13, February 15, 1895 (28 Stat. L., 970).
ne^efeor?rosaecSt- 2153- That no agent, attorney, or other person engaged
iniec!avSk i° preparing, presenting, or prosecuting any claim under
the provisions of this act shall, directly or indirectly, con-
tract for, demand, receive, or retain for such services in
preparing, presenting, or prosecuting such claim a sum
Maximum fee. greater than ten dollars, which sum shall be payable only
upon the order of the Commissioner of Pensions by the
pension agent making payment of the pension allowed,
wrongfui°nwith- and any person who shall violate any of the provisions of
m°e1anof.amisde"tllis section, or who shall wrongfully withhold from a pen-
sioner or claimant the whole or any part of a pension or
claim allowed or due such pensioner or claimant under this
act, shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall, for each and every such offense,
Penalty. be fined not exceeding five hundred dollars or be impris-
oned at hard labor not exceeding two years, or both, in
the discretion of the court. Sec. 4, act of June 27, 1890
(26 Stat. L., 183).
m£n°t rf?eei£ion! 2154> Whenever a claim for pension under the act of
29?par456> 18%t v' June twenty-seventh, eighteen hundred and ninety, has
been, or shall hereafter be, rejected, suspended, or dis-
missed, and a new application shall have been, or shall
hereafter be, filed, and a pension has been, or shall here-
after be, allowed in such claim, such pension shall date
from the time of filing the first application, provided the
evidence in the case shall show a pensionable disability to
have existed, or to exist, at the time of filing such appli-
cation, anything in any law or ruling of the Department
to the contrary notwithstanding.1 Act of March 6, 1896,
(29 Stat. L., 45).
PENSIONS TO ARMY NURSES.
women employed by the Surgeon-General of
27Apg348' 1892' v' ^e Army as nurses, under contract or otherwise, during
1 For the section of the Dependent Pension Law in relation to dependent widows
and minor children, see paragraph 2145, ante.
MILITARY LAWS OF THE UNITED STATES.
851
Rate.
the late war of the rebellion, or who were employed as
nurses during such period by authority which is recog-
nized by the War Department, and who rendered actual
service as nurses in attendance upon the sick or wounded
in any regimental, post, camp, or general hospital of the
armies of the United States for a period of six months or
more, and who were honorably relieved from such service,
and who are now or may hereafter be unable to earn a
support, shall, upon making due proof of the fact accord-
ing to such rules and regulations as the Secretary of the
Interior may provide; be placed upon the list of pen-
sioners of the United States and be entitled to receive a
pension of twelve dollars per month, and such pension
shall commence from the date of filing of the application
in the Pension Office after the passage of this act: Pro-
vided, That no person shall receive more than one pension
for the same period. Act of August 5, 1892 (27 8tat.
Z., 348).
2156. No fee, compensation, or allowance shall be paide^ofeetoasent.
to, received, or accepted by any agent, attorney, or other
person instrumental in the prosecution of any claim f or
pension under this act; and any person who may make
any claim upon any applicant for any fee, compensation,
or allowance shall be guilty of a misdemeanor, and upon
conviction shall be fined not exceeding five hundred dol-
lars or imprisoned at hard labor not exceeding one year,
or both, in the discretion of the court; and it shall be the
duty of the Interior and War Departments to render all
proper aid to applicants under this act. Sec. #, ibid.
Sec. 2, tWd.
MEXICAN WAK PENSIONS.
Par.
2162. Pension laws applicable.
2163. Removal of disability.
2164. The same, restriction.
2165. Increased rate.
2166. Extended to all survivors.
Par.
2157. Who entitled.
2158. Widows and children.
2159. Extension of benefits.
2160. Rate.
2161. Regulations by Secretary of In-
terior.
2157. Any officer, noncommissioned officer, musician, or
private, whether of the Regular Army or Volunteers, dis- 1846 c
abled by reason of iniury received or disease contracted 16ts> 7k7bn
^ < o6c»4«oUj
while in the line of duty in actual service in the war with
Mexico, or in going to or returning from the same, who
received an honorable discharge, shall be entitled to a
pension proportionate to his disability, not exceeding for
852 MILITAEY LAWS OF THE UNITED STATES.
total disability half the pay of his rank at the date at which
he received the wound or contracted the disease which
resulted in such disability. But no pension shall exceed
half the pay of a lieutenant-colonel.
children8 and 2158. If any officer or other person referred to in the
234? sfii) v.8i7,' p! preceding section has died or shall hereafter die by reason
51ec.478i,B.8. °f anj injury received or disease contracted under the cir-
cumstances therein set forth, his widow shall be entitled
to receive the same pension as the husband would have
been entitled to hatl he been totally disabled; and in case
of her death or remarriage, the child or children of such
officer or other person referred to in the preceding section,
while under the age of sixteen years, shall be entitled to
receive the pension. , But the rate of pension prescribed
by this and the preceding section shall be varied after the
twenty-fifth day of July, eighteen hundred and sixty six,
in accordance with the provisions of section four thousand
seven hundred and twelve of this Title.
benSfteSi°n °f 2159t The Secretary of the Interior be, and he is hereby,
i v^2? 3?i7' s' authorized and directed to place on the pension roll the
names of the surviving officers and enlisted men, including
marines, militia, and volunteers, of the military and naval
services of the United States, who, being duly enlisted,
actually served sixty days with the Army or Navy of the
United States in Mexico, or on the coasts or frontier
thereof, or en route thereto, in the war with that nation,
or were actually engaged in a battle in said war, and were
honorably discharged, and to such other officers and sol-
diers and sailors as may have been personally named in
any resolution of Congress for any specific service in said
war, and the surviving widow of such officers and enlisted
widows' men: Provided, That such widows have not remarried:
Provided, That every such officer, enlisted man, or widow
who is or may become sixty-two years of age, or who is
Disabilities. Or may become subject to any disability or dependency
equivalent to some cause prescribed or recognized by the
pension laws of the United States as a sufficient reason for
the allowance of a pension, shall be entitled to the benefit-;
ex °f tnig acfc? but ^ sna^ not ke ^Id to mclude anJ person
not within the rule of age or disability or dependence
herein defined, or who incurred such disability while in
any manner voluntarily engaged in or aiding or abetting
the late rebellion against the authority of the United
States. Act of January 29, 1887 (24 Stat. L., 371).
2160. Pensions under section one of this act shall be at
MILITARY LAWS OF THE UNITED STATES. 853
the rate of eight dollars per month,1 and payable only
from and after the passage of this act, for and during the
natural lives of the persons entitled thereto, or during
the continuance of the disability for which the same shall
be granted: Provided, That section one of this act shall ^ct on exist-
not apply to an}^ person who is receiving a pension at the ^f^^SS'
rate of eight dollars per month or more, nor to any person
receiving a pension of less than eight dollars per month,
except for the difference between the pension now received
(if less than eight dollars per month) and eight dollars per
month.2 Sec. 8, ibid.
2161. Before the name of any person shall be placed on secretary of
the pension roll under this act, proof shall be made, under prescribe rules,
such rules and regulations as the Secretary of the Interior
may prescribe, of the right of the applicant to a pension;
and any person who shall falsely and corruptly take any
oath required under this act shall be deemed guilty of
perjury; and the Secretary of the Interior shall cause to
be stricken from the pension roll the name of any person
whenever it shall be made to appear by proof satisfactory
to him that such name was put upon such roll through
false and fraudulent representations, and that such per-
son is not entitled to a pension under this act. The loss Sec- 3. #«•
of the certificate of discharge shall not deprive any person
of the benefits of this act, but other record evidence of
enlistment and service and of an honorable discharge may be
deemed sufficient: Provided, That when any person has Proviso.
been granted a land warrant, under any act of Congress, to be primafade
£ j £ • - <LI •/ -,i TIT • evidence of serv-
for and on account of service in the said war with Mexico, ice.
such grant shall be prim-a facie evidence of his service and
honorable discharge, but such evidence shall not be con-
clusive, and may be rebutted by evidence that such land
warrant was improperly granted. Sec. 3, ibid.
2162. The pension laws now in force which are not Pension laws
., . <••. j •>* .1 • i i i made applicable.
inconsistent or in conflict with this act are hereby made a sec. 4, ma.
part of this act, so far as they may be applicable thereto.
Sec. h ibid.
2163. Section forty-seven hundred and sixteen of the p ^9s-ns
Revised Statutes is hereby repealed so far as the sameP^ 5 md
relates to this act or to pensioners under this act. Sec. 5,
ibid.
1 By the acts of January 5, 1893 (27 Stat L., 413), and April 23, 1900 (31 ibid., 137),
paragraphs 2165 and 2166 post, this rate was increased to twelve dollars per month
under certain conditions therein set forth.
2 Increased to twelve dollars per month in certain cases by acts of January 5, 1893
(27 Stat. L., 413), and April 23, 1900 (31 Stat. L., 137), paragraphs 2165 and 2166
post.
854
MILITARY LAWS OF THE UNITED STATES.
27, p. 413.
2164- The provisions of this act shall not apply to
' any Person while under the political disabilities imposed
by the fourteenth amendment to the Constitution of the
United States. Sec. 6, ibid.
2165' The Secretary of the Interior is hereby authorized
£0 increase the pension of every pensioner who is now on
the rolls at eight dollars per month on account of services
in the Mexican War and who is wholly disabled for man-
ual labor, and is in such destitute circumstances that eight
dollars per month are insufficient to provide him the nec-
essaries of life, to twelve dollars per month. Act of Jan-
uary 5, 1893 (27 Slat. Z., 413).
aiiEsXu?£vo?s. to 2166. The benefits of the act entitled " An act granting
v. 3i,rp. it'?.1900' increase of pension to soldiers of the Mexican war in cer-
tain cases," approved January fifth, eighteen hundred
and ninety-three,1 be, and they are hereby, extended to all
survivors of the Mexican war who are pensionable under
existing Mexican war service pension laws, and who have
become or may hereafter become wholly disabled for
manual labor, and in such destitute circumstances that
eight dollars per month are insufficient to provide them
the necessaries of life, irrespective of the date of the
granting of the said service pension. Act of April 23,
1900(31 Stat. Z., 137).
PENSIONS FOR INDIAN WARS, 1832-1 842. *
Par.
2167. Who entitled.
2168. Rate.
2169. Proof.
2170. Restriction on application.
Par.
2171. Pension laws applicable.
2172. Removal of disability.
2173. Widows.
2174. Citizenship.
PriSrdioni84lars 2167- The Secretary of the Interior is hereby author-
servicein8 forized and directed to place on the pension roll the names
27Jply28i' 1892> v' °f ^e surviving officers and enlisted men, including ma-
rines, militia, and volunteers of the military and naval
service of the United States, who served for thirty days
in the Black Hawk war, the Creek war, the Cherokee dis-
turbances, or the Florida war with the Seminole Indians,
embracing a period from eighteen hundred and thirty-two
to eighteen hundred and forty-two, inclusive, and were
honorably discharged, and such other officers, soldiers,
and sailors as may have been personally named in any
resolution of Congress, for any specific service in said
Indian wars, although their term of service may have been
less than thirty days, and the surviving widows of such
Widows.
MILITARY LAWS OF THE UNITED STATES. 855
officers and enlisted men: Provided, That such widows Remarriage,
have not remarried: Provided further, That this act shall
not apply to any person not a citizen of the United States, citizens!18
Act of July 27, 1892 (27 Stat. Z., 281).
2168. Pensions under this act shall be at the rate of §££2, ibid,
eight dollars per month, and payable from and after the
passage of this act, for and during the natural lives of the
persons entitled thereto. Sec. 2, ibid.
2169. Before the name of any person shall be placed on Proof'
the pension roll under this act, proof shall be made, under
such rules and regulations as the Secretary of the Interior
may prescribe, of the right of the applicant to a pension;
and any person who shall falsely and corruptly take any fa£|
oath required under this act shall be deemed guilty of etgec. 3, ibid.
perjur3r; and the Secretary of the Interior shall cause to
be stricken from the pension roll the name of any person
whenever it shall be made to appear by proof satisfactory
to him that such name was put upon such roll through
false and fraudulent representations, and that such person
is not entitled to a pension under this act. The loss of the Charge0fcertifl-
certificate of discharge shall not deprive any person of the cate not a bar'
benefits of this act, but other evidence of service per-
formed and of an honorable discharge may be deemed
sufficient. Sec. 3, ibid.
2170. This act shall not apply to any person who is re- ceS*££5Sio£
ceiving a pension at the rate of eight dollars per month or er|ec 4 ibid
more, nor to any person receiving a pension of less than
eight dollars per month, except for the difference between
the pension now received (if less than eight dollars per
month) and eight dollars per month. Sec. 4-) ibid.
2171. The pension laws now in force, which are not in- & p^S?e laws
consistent or in conflict with this act, are hereby made a Sec- 5> ibid-
part of this act, so far as they may be applicable thereto.1
Sec. 5, ibid.
1 Revolutionary pensions. — For statutes granting pensions for services in the war of the
Revolution, see the acts of April 10, 1806 (2 Stat. L., 376), April 25, 1812 (2 Stat. L.,
719), March 18, 1818 (3 Stat. L., 410), May 15, 1820 (3 Stat. L., 597), February 4,
1822 (3 Stat. L., 650), March 1, 1823 (3 Stat. L., 787), May 15, 1828 (4 Stat. L., 269),
May 31, 1830 (4 Stat. L., 426), June 7, 1832 (4 Stat. L., 529), July 14, 1832 (4 Stat.
L., 529), February 19, 1833 (4 Stat. L., 612), July 4, 1836 (5 Stat. L., 128), March 3,
1837 ( 5 Stat. L., 187), February 2, 1848 (9 Stat. L., 210), July 29, 1848 (9 Stat. L., 266),
February 3, 1853 (10 Stat. L., 154), February 28, 1855 (10 Stat. L., 616), March 9,
1878 (20 Stat. L., 29), March 19, 1886 (24 Stat. L., 5), and sections 4716 and 4743,
Revised Statutes.
War of 1812. — For statutes granting pensions for services in the war of 1812 see the
acts of January 11, 1812 (2 Stat. L., 673), February 6, 1812 (2 Stat. L., 677), August
2, 1813 (3 Stat. L., 74), April 16, 1816 (3 Stat. L., 286), April 4, 1842 (5 Stat. L., 473),
March 9, 1878 (20 Stat. L., 27), March 19, 1886 (24 Stat: L., 5), and sections 4712,
4713, 4732, 4737, 4738, 4739, and 4740, Revised Statutes.
856 MILITARY LAWS OF THE UNITED STATES.
> Section forty-seven hundred and sixteen of the
Revised Statutes is hereby repealed, so far as the same
relates to this act or to pensioners under this act. Sec.
6, ibid.
chMrdenW0f pe1^ 2173- The widows and children under sixteen years of
i8i2eandf Indian a£e °^ ^e officers, noncommissioned officers, musicians,
WFeb. 14, 1871, c. and privates of the regulars, militia, and volunteers of the
"fe^&I-M&k war °f one thousand eight hundred and twelve and the
various Indian wars since one thousand seven hundred and
ninety who remained at the date of their death in the mili-
tary service of the United States, or who received an honor-
able discharge and have died or shall hereafter die of injury
received or disease contracted in the service and in the line
of duty shall be entitled to receive half the monthly pay to
which the deceased was entitled at the time he received the
injury or contracted the disease which resulted in his death.
But no half -pay pension shall exceed the half pay of a lieu-
tenant-colonel, and such half -pay pension shall be varied
after the twenty-fifth day of July, one thousand eight hun-
dred and sixty -six, in accordance with the provisions of
section four thousand seven hundred and twelve of this
title.
FebZ3ni892; v. 2174< The Commissioner of Pensions is hereby author-
27, p. 429. jzed and directed to accept as sufficient proof of the citi-
zenship of an applicant for pension under the act of July
twenty-seventh, eighteen hundred and ninety-two, the fact
that said applicant at the date of the application was an
actual and bona fide resident of the United States. Act of
February 3, 1892 (27 Stat. Z., j&9).
PENSIONS ON SPECIAL ACTS.
si<?nte5Siizpedn~ 2175< AH persons entitled to pensions under special acts
18Jpn6*6'1874' v- fixing the rate of such pensions, and now receiving or
entitled to receive a less pension than that allowed by the
general pension laws under like circumstances, are, in lieu
of their present rate of pension, hereby declared to be
entitled to the benefits and subject to the limitations of the
general pension laws entitled uAn act to revise, consoli-
date, and amend the laws relating to pensions," approved
March third, eighteen hundred and seventy-three; and that
ed^yspecfafact *kis act go into effect f rom and after its passage: Provided,
not reduced. That this act shall not be construed to reduce any pension
granted by special act. Act of June 6, 1874 (18 Stat. L. , 61).
spHonactadof 2176> When the rate, commencement, and duration of a
.s. Pensi°n allowed by special act are fixed by such act, they
MILITARY LAWS OF THE UNITED STATES.
857
shall not be subject to be varied by the provisions and
limitations of the general pension laws, but when not thus
fixed the rate and continuance of the pension shall be sub-
ject to variation in accordance with the general laws, and
its commencement shall date from the passage of the spe-
cial act, and the Commissioner of Pensions shall, upon
satisfactory evidence that fraud was perpetrated in obtain-
ing such special act, suspend payment thereupon until
the propriety of repealing the same can be considered by
Congress. See act of June 6, 187 b (18 Stat. Z., 61).
2177. No person who is now receiving or shall hereafter
receive a pension under a special act shall be entitled to j£*
receive in addition thereto a pension under the general UJ
law unless the special act expressly states that the pension1882''?-176-
granted thereby is in addition to the pension which said
person is entitled to receive under the general law. Sec. 5,
act of July 25, 1882 (22 Stat. Z., 176).
COMMENCEMENT OF PENSION — ARREARS OF PENSION.
Par.
2178, 2179. Commencement.
2180. Rate of arrears.
2181. Date of commencement.
2182. Accrument of pension.
Par.
2183. Arrears of pension.
2184. No fees in arrear cases.
2185. Commencement of pensions
prior wars.
for
Rate.
2178. All pensions which have been granted under them£°tmmence-
general laws regulating pensions, or may hereafter be igf/gVa/p11'^1
granted, in consequence of death from a cause which origi-
nated in the United States service during the continuance
of the late war of the rebellion or in consequence of
wounds, injuries, or disease received or contracted in said
service during said war of the rebellion, shall commence
from the date of the death or discharge from said service
of the person on whose account the claim has been or shall
hereafter be granted, or from the termination of the right
of the party having prior title to such pension : Provided,
The rate of pension for the intervening time for which
arrears of pension are hereby granted shall be the same per
month for which the pension was originally granted.1 Sec.
1, act of January 25, 1879 (20 Stat. Z., 265).
2179. Section one of the act of January twenty-fifth, ^^879, v.
eighteen hundred and seventy-nine, granting arrears of ^ P- *™-
'Section 2 of the act of January 25, 1879 (20 Stat. L., 265), authorizes the Secre-
tary of the Interior to "adopt such rules and regulations for the payment of the
arrears of pensions hereby granted as will be necessary to cause to be paid to such
pensioners, or, if the pensioners shall have died, to the person or persons entitled to
the same, all such arrears of pension as the pensioner may be, or would have been,
entitled to under this act."
'858 MILITARY LAWS OF THE UNITED STATES.
pensions shall be construed to extend to and include pen-
sions on account of soldiers who were enlisted or drafted
for the service in the war of the rebellion, but died or
incurred disability from a cause originating after the cessa-
tion of hostilities and before being mustered out: Pro-
vided, That in no case shall arrears of pensions be allowed
and paid from a time prior to the date of actual disability.
Act of March 3, 1879 (20 Stat. Z., 470).
2180. The rate at which the arrears of invalid pensions
shall be allowed and computed in the cases which have
been or shall hereafter be allowed shall be graded accord-
ing to the degree of the pensioner's disability from time
to time and the provisions of the pension laws in force
over the period for which the arrears shall be computed.
Act of March 3, 1879 (20 Stat. Z., 470).
mencementc°m 2181. All pensions which have been or which may here-
sec. 2, ibid, after be granted in consequence of death occurring from
a cause which originated in the service since the fourth
day of March, eighteen hundred and sixty-one, or in con-
sequence of wounds or injuries received or disease con-
tracted since that date, shall commence from the death or
discharge of the person on whose account the claim has
been or is hereafter granted if the disability occurred prior
to discharge, and if such disability occurred after the dis-
charge then from the date of actual disability or from the
termination of the right of party having prior title to such
Limitation, pension i Provided, The application for such pension has
been or is hereafter filed with the Commissioner of Pen-
sions prior to the first day of July, eighteen hundred and
eighty, otherwise the pension shall commence from the
date of filing the application; but the limitation herein
prescribed shall not apply to claims by or in behalf of
insane persons and children under sixteen years of age.
Sec. 2, ibid.
dewm!d P0enhsa™ 2182. In construing the preceding section,1 the right of
aCMared3, 1873, s. persons entitled to pensions shall be recognized as accru-
16sec.477fe,^?s. m£ a^ ^ne date therein stated for the commencement of
such pension, and the right of a dependent father or
dependent brother to pension shall not in any case be held
to have accrued prior to the sixth day of June, eighteen
hundred and sixty-six; and the right of all other classes
of claimants, if applying on account of the death of a per-
1 The section above referred to is section 4709 of the Revised Statutes, which was
expressly repealed by the act of March 3, 1879 (20 Stat. L., 469).
MILITARY LAWS OF THE UNITED STATES. 859
son who was regularly mustered into the service or regu-
larly employed in the Navy or upon the gunboats or war
vessels of the United States, shall not be held to have
accrued prior to the fourteenth day of July, eighteen hun-
dred and sixty-two; if applying on account of a chaplain
of the Army, their right shall not be held to have accrued
prior to the ninth day of April, eighteen hundred and
sixty-four; if applying on account of an enlisted soldier
who was not mustered, or a nonenlisted man in temporary
service, their right shall not be held to have accrued prior
to the fourth day of July, eighteen hundred and sixty-
four; if applying on account of an acting assistant or con-
tract surgeon, their right shall not be held to have accrued
prior to the third day of March, eighteen hundred and
sixty-five; if applying on account of persons enlisted as
teamsters, wagoners, artificers, hospital stewards, or far-
riers, their right shall not be held to have accrued prior to
the sixth day of June, eighteen hundred and sixty-six;
and the right of all classes of claimants applying on account
of a provost marshal, deputy provost marshal, or enrolling
officer shall not be held to have accrued prior to the
twenty-fifth day of July, eighteen hundred and sixty-six.
But the right of a widow or dependent mother who mar-
ried prior and did not apply till subsequent to the twenty-
seventh day of July, eighteen hundred and sixty-eight,
shall not be held to have accrued prior to that date.
2183. It shall be the duty of the Commissioner of Pen- Arrears of pen-
sions, upon any application by letter or otherwise by or on sec. 4711, B. s.
behalf of any pensioner entitled to arrears of pension
under section forty-seven hundred and nine,1 or if any such
pensioner has died, upon a similar application by or on
behalf of any person entitled to receive the accrued pen-
sion due such pensioner at his death, to pay or cause to be
paid to such pensioner, or other person, all such arrears
of pension as the pensioner may be entitled to, or, if dead,
would have been entitled to under the provisions of that
section had he survived; and no claim agent or other per-
son shall be entitled to receive any compensation for serv-
ices in making application for arrears of pension.
2184. No fee shall be demanded, received, or allowed in NO fees in ar-
any claim for arrears of pension, or arrears of increase Sisel °f pen
of pension allowed by any act of Congress passed sub- 4, v^Js.Vi^4' s'
1 The section above referred to is section 4709 of the Revised Statutes, which was
expressly repealed by the act of March 3, 1879 (20 Stat. L., 469).
860
MILITARY LAWS OF THE UNITED STATES.
sequent to the date of the allowance of the original claims
in which such arrears of pension or of increase of pension
may be allowed.1 Sec. 4, act of July 4, 1884 (23 Stat.
L.,99).
mentS^sioM 2185' In a11 cases in wm'ch the cause of disability or
death originated in the service prior to the fourth day of
March, eighteen hundred and sixty-one, and an applica-
tion for pension shall not have been filed within three
years from the discharge or death of the person on whose
account the claim is made, or within three years of the
termination of a pension previously granted on account of
the service and death of the same person, the pension shall
commence from the date of filing by the party prosecuting
the claim the last paper requisite to establish the same.
But no claim allowed prior to the sixth day of June, eight-
een hundred and sixty-six, shall be affected by anything
herein contained.
INCREASE OF PENSIONS.
Par.
2186. Increase of pensions.
2187. Minimum rate to be six dollars.
Par.
2188. No fee for increase claims; penalty
for taking illegal fee; pending
contracts.
Increase of pen-
sions.
234, s.4, V. 17',p!
2186. Except in cases of permanent specific disabilities,
no increase of pension shall be allowed to commence prior
is p 78 ^° ^e ^a^e °^ ^ne examming surgeon's certificate estab-
Sec.4698i,B.s. lishing the same made under the pending claim for increase;
and in this, as well as all other cases, the certificate of an
examining surgeon, or of a board of examining surgeons,
shall be subject to the approval of the Commissioner of
Pensions.
six dollars a 2187. From and after the passage of this act, all pen-
minimum?ate, e sioners now on the rolls, who are pensioned at less than
28?par704.1895' v> six dollars per month, for any degree of pensionable disa-
bility, shall have their pensions increased to six dollars
per month; and that hereafter, whenever any applicant
for pension would, under existing rates, be entitled to less
NO prior effect, than six dollars for any single disability, or several com-
bined disabilities, such pensioner shall be rated at not less
than six dollars per month: Provided also, That the pro-
visions hereof shall not be held to cover any pensionable
period prior to the passage of this act, nor authorize a
rerating of any claims for any part of such period, nor
lfrhis statute replaces section 4 of the act of January 25, 1879 (20 Stat. L., 265).
MILITARY LAWS OF THE UNITED STATES.
861
prevent the allowance of lower rates than six dollars per
month, according to the existing practice in the Pension
Office in pending cases covering any pensionable period
prior to the passage of this act. Act of March 2, 1895 (28
Stat. Z., 704).
2188. Hereafter no agent or attorney shall demand, re- Fee for increase,
J ' etc., claims. Pen-
ceive, or be allowed anv compensation under existing law aity for taking n-
, . j. <• > legal fee. Pend-
exceeding two dollars in any claim tor increase or pension ing contracts.
on account of the increase of the disability for which the 26, p. io&2.
pension has been allowed, or for services rendered in
securing the passage of any special act of Congress grant-
ing a pension or an increase of pension in any case that
has been presented at the Pension Office or is allowable
under the general pension laws: And provided further,
That any agent, attorney, or other person instrumental in
prosecuting any claim for increase of pension on account of
the increase of disability for which pension was allowed,
or who has rendered services in procuring the passage of
any special act of Congress granting a pension or an
increase of pension in any case that has been presented at
the Pension Office or is allowable under the general pen-
sion laws, who shall directly or indirectly contract for,
demand, receive, or retain any compensation for such serv-
ices, except as hereinbefore provided, shall be deemed
guilty of a misdemeanor, and upon conviction thereof
shall, for each and every such offense, be fined not exceed-
ing five hundred dollars or imprisoned, not exceeding two
years or both, in the discretion of the court: Provided,
however, That the foregoing provisions in relation to fees
of agents or attorneys shall not apply to any case now
pending where there is an existing lawful contract express
or implied. Act of March 3, 1891 (26 Stat Z., 1082).
DECLARATIONS AND EVIDENCE IN PENSION CASES.
Par.
2189. Declarations, oaths, etc.
2190, 2191. The same, oaths.
2192. Declarations in foreign countries.
2193. Blank forms and instructions to be
furnished.
2194. Curing defective declarations.
2195. Proof of death.
Par.
2196. Presumptions as to nondisability at
enlistment.
2197. Same as to absentees.
2198. Period of service, how reckoned.
2199. Proof of marriage.
2200. Legitimacy of children.
2201. Certain soldiers not to be deemed
deserters.
2189. Declarations1 of pension claimants shall be made b
before a court of record, or before some officer thereof 18||c^,
having custody of its seal, or before some officer who, under
862
MILITARY LAWS OF THE UNITED STATES.
be? or
ized officer.
the laws of his State, city, or county, has authority to ad-
minister oaths for general purposes; and said officers are
hereby fully authorized and empowered to administer and
certify any oath or affirmation relating to any pension or
application therefor: Provided, That where such declara-
tion or other papers are executed before an officer author-
ized as above but not required by the laws of his State to
have and use a seal to authenticate his official acts, he
shall file in the Pension Bureau a certificate of his official
character, showing his official signature and term of office,
certified by a clerk of a court of record or other proper
officer of the State as to the genuineness thereof; and when
said certificate has been filed in the Bureau of Pensions his
own certificate will be recognized during his term of office.1
Sec. 1, act of July 26, 1892 (27 Stat. L., 272}.
oaths in pen- 2190. Any and all affidavits and declarations to be here-
sion, etc., cases.
after made or used in any pension or bounty cases, or in
claims against the Government for back pay or arrears or
increase of pension, or for quarterly vouchers, may be
taken by any officer authorized to administer oaths for
general purposes in the State, city, or county where said
officer resides. If such officer has a seal and uses it upon
certification, such paper, no certificate of a county clerk or prothono-
etc., by county J
clerk, etc.i8Qo ^ tary or clerk of a court shall be necessary; but when no
26, p. 209. seal is used by the officer taking such affidavit, then a
clerk of a court of record or a county or city clerk shall
affix his official seal thereto and shall certify to the signa-
ture and official character of said officer.2 Act of July 1,
1890(26 Stat. L.,209).
siolaca!esn Pen- 2191. The act approved July first, eighteen hundred and
ninety, entitled "An act in relation to oaths in pension
and other cases," be, and the same is hereby, amended and
construed to mean that when declarations, affidavits,
and other papers are verified by justices of the peace and
other officers duly authorized by law to administer oaths
for general persons, but not required by law to have seals,
certificate of the official character, signature, and term of service of
ter, etc. such justice or other officer shall be certified by the clerk
1890, v. 28, p. em of the county or court of record or other proper officer,
*mder the seal of such county or court or public officer, in
1 The act of June 13, 1898 (30 Stat L., 448, 462), contains a provision exempting
" papers necessary to be used for the collection 01 claims from the United States for
pensions, back pay, bounty, or for property lost in the military or naval service"
from the operation of the statute requiring powers of attorney to be stamped in
accordance with the requirements of that enactment.
2 Replaced in part by the act of July 26, 1892 (27 Stat. L., 272), paragraph 2189,
ante.
MILITARY LAWS OF THE UNITED STATES. 863
the department or bureau in which such papers are to be
used; and one such certificate duly filed in such depart- one sufficient,
ment or bureau, or with any pension agent, shall be suffi-
cient as to all verifications of such officer during his official
term, and all papers heretobefore or hereafter filed shall
be subject.1 Joint resolution No, Jft, September 1, 1890
(26 Stat. L.,679).
2192. The Commissioner of Pensions may accept decla-
rations and other papers of claimants residing in foreign
countries made before a United States minister or consul1892' v. 27, p. 272.
or other consular officer, or before some officer of the
country duly authorized to administer oaths for general
purposes, and whose official character and signature shall
be duly authenticated by the certificate of a United States
minister or consul, or other consular officer; and declara^ Deciarationsof
Indians.
tions in claims of Indians may be made before a United
States Indian agent. Sec: 8, act of July 26, 1892 (27 Stat.
2193. The Commissioner of Pensions, on application Commissioner
to furnish print-
being made to him in person, or by letter, by any claimant ed instructions
r J J J free of charge.
or applicant for pension, bounty -land, or other allowance •*"&&*•• s. 22, p.
required by law to be adjusted or paid by the Pension Sec.4748,R.s.
Office, shall furnish such person, free of all expense, all
such printed instructions and forms as may be necessary in
establishing and obtaining said claim; and on the issuing
of a certificate of pension or of a bounty-land warrant, he
shall forthwith notify the claimant or applicant, and also
the agent or attorney in the case, if there be one, that such
certificate has been issued, or allowance made, and the date
and amount thereof.2
2194. Any and all declarations and affidavits now on file ive 'decorations!
in the Pension Bureau which are considered informal by etgec. 3( Juiy 2e,
reason of not having been executed in conformity to the 1892' v< 27' p* 272>
laws heretofore in force covering such, and in which it is
shown or may be hereafter shown by proper evidence that
the same were executed by and before an officer who was
duly authorized to administer oaths for general purposes
at said date of execution, shall be accepted as formal as
from date of filing such declarations or affidavits. Sec. 3,
act of July 26, 1892 (27 Stat. Z., 272).
Replaced in part by the act of July 26, 1892 (27 Stat. L., 272), paragraph 2189,
ante.
2 Section 4717 of the Revised Statutes, which established a period of limitation in
the prosecution of claims for pension, was expressly repealed by the act of January
25, 1889 (20 Stat. L., 265), paragraph 2202, post. There is now no limitation, in point
of time, in the prosecution of pension claims.
864 MILITARY LAWS OF THE UNITED STATES.
2195. ^u considering claims filed under the pension laws,
29, p. 57. £ne death of an enlisted man or officer shall be considered
as sufficient!}7 proved if satisfactory evidence is produced
establishing the fact of the continued and unexplained
absence of such enlisted man or officer from his home and
family for a period of seven -years, during which period
no intelligence of his existence shall have been received.
And any pension granted under this act shall cease upon
proof that such officer or enlisted man is still living. Act
of March IS, 1896 (29 Stat. L., 57).
as toTsabFmV™ 2196. AU applicants for pensions shall be presumed to
enMarm3ni885 v ^ave na(l no disability at the time of enlistment; but such
23, p. SGI. presumption may be rebutted. Act of March 3, 1885 (23
Stat. L.,361).
se^M&S. 2197. Officers absent on sick leave, and enlisted men
see. 4?oo,R.s. absent on sjck furlough, or on veteran furlough with the
organization to which they belong, shall be regarded in
the administration of the pension laws in the same manner
as if they were in the field or hospital.
ice^how* Scon 2198. The period of service of all persons entitled to the
8tsecd7 mi benefits of the pension laws, or on account of whose death
Sec. 4701, K.S. anv persOn may become entitled to a pension, shall be con-
strued to extend to the time of disbanding the organization
to which such persons belonged, or until their actual dis-
charge for other cause than the expiration of the service
of such organization.
riage0* °f mar 2199. Marriages, except such as are mentioned in section
22?p*846.1882> v' forty-seven hundred and five of the Revised Statutes, shall
be proven in pension cases to be legal marriages according
to the law of the place where the parties resided at the
time of marriage, or at the time when the right to pension
accrued; and the open and notorious adulterous cohabita-
tion of a widow who is a pensioner shall operate to term-
inate her pension from the commencement of such cohab-
itation. Act of August 7, 1888 (22 Stat. Z., 346).
what children 2200. In the administration of the pension laws, children
deemed legiti-
08ee '4704 R s ^orn before the marriage of their parents, if acknowledged
by the father before or after the marriage, shall be deemed
legitimate.
certain sol- 2201. No soldier or sailor shall be taken or held to be a
diers and sailors , , . _T , ., . . ., ,, .,
not to be deemed a deserter trom the Army or JNavy who laitniully served
July 19,' 1867, c. according to his enlistment until the nineteenth day of
Sec'. 4749, E. s. April, eighteen hundred and sixty-five, and who, without
proper authority or leave first obtained, quit his command
or refused to serve after that date; but nothing herein
contained shall operate as a remission of any forfeiture
MILITARY LAWS OF THE UNITED STATES. 865
incurred by any such soldier or sailor of his pension; but
this section shall be construed solely as a removal of any
disability such soldier or sailor may have incurred by the
loss of his citizenship in consequence of his desertion.
REMOVAL OF LIMITATION.
2202. That section forty-seven hundred and seventeen of pr^^tion $
the Revised Statutes of the United States, which provides ?eemo£?d. clalms
that ' ' no claim for pension not prosecuted to a successful 18fg |* ,
issue within five years from the date of filing the same
shall be admitted without record evidence from the War or
Navy Department of the injury or the disease which resulted
in the disability or death of the person on whose account
the claim is made: Provided, That in any case in which the
limitation prescribed by this section bars the further prose-
cution of the claim, the claimant may present, through the
Pension Office, to the Adjutant-General of the Army or the
Surgeon-General of the Navy, evidence that the disease or
injury which resulted in the disability or death of the
person on whose account the claim is made originated in
the service and in the line of duty, and if such evidence is
deemed satisfactory by the officer to whom it may be sub-
mitted, he shall cause a record of the fact so proved to be
made, and a copy of the same to be transmitted to the
Commissioner of Pensions, and the bar to the prosecution
of the claim shall thereby be removed," be, and the same is
hereby, repealed. 1 Sec. 3, act of January <25, 1879 (20 Stat.
L.,%65).
FEES.2
Par.
2207. Regulations to be prescribed.
2208. Rejection of contracts for fees.
2209. Repeal of prior statute respecting
fees.
2210. Sections 4768, 4769, and 4786, Re-
vised Statutes, made applicable.
2211. False affidavits; penalty.
Par.
2203. Fees for prosecution of claims.
2204. Agreement to be filed; form of
agreement.
2205. Amount paid to be deducted from
fee.
2206. Penalty for violation of statute re-
specting fees.
2203. No agent or attorney or other person shall demand
or receive any other compensation for his services in pros- in^ clai"ms-
1 Section 4721, Revised Statutes, prescribes a limitation upon the operation of sec-
tions 4709 and 4710, and 4717, the former of which were repealed by the act of March
3, 1879 (20 Stat. L., 469), and the latter by section 3 of the act of January 25, 1879
(20 Stat. L., 265).
2 For other statutory restrictions in respect to the allowance of attorneys' fees in
pension cases, see section 4 of the act of July 4, 1884 (23 Stat. L., 99), par. 2184,
ante; section 2, act of March 19, 1886 (24 ibid., 5), paragraph 2139, ante; section 4,
act of June 27, 1890 (26 ibid., 182), paragraph 2153, ante; March 3, 1891 (26 ibid.,
1082), paragraph 2188, ante; section 2, act of August 5, 1892 (27 ibid., 349), para-
graph 2156, ante.
22924—08 55
866 MILITARY LAWS OF THE UNITED STATES.
i8M,Cv.323f p!?9?' ecuting a claim for pension or bounty land than such as
sec.4786,k.s. the Commissioner of Pensions shall direct to be paid to
him, not exceeding twenty-five dollars; nor shall such
agent, attorney, or other person demand or receive such
compensation, in whole or in part, until such pension or
Proviso. bounty-land claim shall be allowed: Provided, That in all
claims allowed since June twentieth, eighteen hundred
and seventy-eight, where it shall appear to the satisfaction
tne Commissioner of Pensions that the fee of ten dol-
> or an3r Part thereof, has not been paid, he shall cause
the same to be deducted from the pension, and the pension
agent to pay the same to the recognized attorney.
amoguSt?fefeefto 2204- Tne agent or attorney of record in the prosecution
besece(4, July 4, °^ the case may cause to be filed with the Commissioner of
^'JiHiftSs. Pensions, duplicate articles of agreement, without addi-
tional cost to the claimant, setting forth the fee agreed
upon by the parties, which agreement shall be executed in
the presence of and certified by some officer competent to
administer oaths. In all cases where application is made
faSu?|intoasefi?e^or Pensi°n or bounty land, and no agreement is filed with
agreement. the Commissioner as herein provided, the fee shall be ten
dollars and no more. And such articles of agreement as
may hereafter be filed with the Commissioner of Pensions
Articles of are not authorized, nor will they be recognized except in
agreement, etc., . . , _ /
recognized in claims for original pensions, claims for increase of pension
certain claims '
only. on account of a new disability, in claims for restoration
where a pensioner's name has been or may hereafter be
dropped from the pension rolls on testimony taken by a
special examiner, showing that the disability or cause of
death, on account of which the pension was allowed, did
not originate in the line of duty, and in cases of dependent
relatives whose names have been or may hereafter be,
dropped from the rolls on like testimony, upon the ground
of nondependence, and in such other cases of difficulty
and trouble as the Commissioner of Pensions may see fit to
recognize them: Provided, That no greater fee than ten
land? eS b°unty dollars shall be demanded, received, or allowed in any claim
for pension or bounty land granted by special act of Con-
gress, nor in any claim for increase of pension on account
of the increase of the disability for which the pension had
been allowed: And provided further, That no fee shall be
foNo^e|aiowed Demanded, received, or allowed in any claim for arrears of
pension, etc. pension or arrears of increase of pension allowed by any
act of Congress passed subsequent to the date of the
allowance of the original claims in which such arrears of
m'
MILITAEY LAWS OF THE UNITED STATES. 867
pension, or of increase of pension, may be allowed.1 Sec.
4, act of July 4, 1884 (23 Stat. Z., 99).
The articles of agreement herein provided for shall be in
substance as follows, to wit:
ARTICLES OF AGREEMENT.
Whereas I, - — , late a - - in company
— , of the - - regiment of - - volunteers, war
of eighteen hundred and sixty-one (or, if the service be
different, here state the same), having made application for
pension under the laws of the United States:
Now, this agreement witnesseth, that for and in consid-
eration of services done and to be done in the premises, I
hereby agree to allow my attorney, - — , of
— , the fee of - - dollars, which shall include all
amounts to be paid for any service in furtherance of said
claim; and said fee shall not be demanded by or payable
to my said attorney (or attorneys), in whole or in part, ex-
cept in case of the granting of my pension by the Commis-
sioner of Pensions; and then the same shall be paid to him
(or them) in accordance with the provisions of sections forty-
seven hundred and sixty-eight and forty-seven hundred and
sixty-nine of the Revised Statutes.
(Claimant's signature.)
(Two witnesses' signatures.)
STATE OF )
County of - \
Be it known that on this, the — — day of , anno
Domini eighteen hundred and eighty - — , personally ap-
peared the above-named - — , who, after having
had read over to - — , in the hearing and presence of the
two attesting witnesses, the contents of the foregoing arti-
cles of agreement, voluntarily signed and acknowledged
the same to be free act and deed.
(Official signature.)
And now, to wit, this — — day of - — , anno Domini
eighteen hundred and eighty , I (or we) accept the pro-
visions contained in the foregoing articles of agreement,
and will, to the best of my (or our) ability, endeavor faith-
fully to represent the interest of the claimant in the prem-
ises.
Witness my (or our) hand, the day and year first above
written.
(Signature of attorney.)
^his section replaces section 4 of the act of January 25, 1879 (20 Stat. L., 265).
868 MILITARY LAWS OF THE UNITED STATES.
STATE OF - - )
County of— — I
Personally came - , whom I know to be the
person he represents himself to be, and who, having signed
above acceptance of agreement, acknowledged the same to
be free act and deed.
(Official signature.)
Amount paid 2205. And if in the adjudication of any claim for pension
ducted from fee. jn which such articles of agreement have been, or may here-
after be, filed, it shall appear that the claimant had, prior
to the execution thereof, paid to the attorney any sum for
his services in such claim, and the amount so paid is not
stipulated therein, then every such claim shall be adjudi-
cated in the same manner as though no articles of agree-
ment had been filed, deducting from the fee of ten dollars
allowed by law such sum as claimant shall show that he
has paid to his said attorney. Ibid.
Penalty for 2206. Any agent or attorney or other person instrumental
violation of act . . . , . „ '
relating to fees in prosecuting any claim for pension or bounty land, who
or compensation. , *\, ,. ., . ,. ., . „ , ,
shall directly or indirectly contract for, demand or receive or
retain any greater compensation for his services or instru-
mentality in prosecuting a claim for pension or bounty land
than is herein provided, or for payment thereof at any other
time or in any other manner than is herein provided, or
who shall wrongfully withhold from a pensioner or claimant
the whole or any part of the pension or claim allowed and
due such pensioner or claimant, or the land warrant issued
to any such claimant, shall be deemed guilty of a misde-
meanor, and upon conviction thereof shall for every such
offense be fined not exceeding five hundred dollars, or
imprisoned at hard labor not exceeding two years, or both,
in the discretion of the court. Ibid.
secretary of 2207. That the Secretary of the Interior may prescribe
Interior to pre- , , , . ,, ., . ' ,,
scribe rules forrules and regulations governing the recognition of agents,
government of . ,. , .
agents, etc., in attorneys, or other persons representing claimants betore
prosecution of , . _ „ ,
claims. his Department, and may require of such persons, agents,
' £ J. • J \-
and attorneys, before being recognized as representatives
of claimants, that they shall show that they are of good
moral character and in good repute, possessed of the nec-
essary qualifications to enable them to render such claim-
ants valuable service, and otherwise competent to advise
and assist such claimants in the presentation of their claims
and such Secretary may, after notice and opportunity for a
hearing, suspend or exclude from further practice before
MILITARY LAWS OF THE UNITED STATES. 869
his Department any such person, agent, or attorney shown
to be incompetent, disreputable, or who refuses to comply
with the said rules and regulations, or who shall with
intent to defraud in any manner deceive, mislead, or
threaten any claimant, or prospective claimant, by word,
circular, letter, or by advertisement. Sec. 5, ibid.
2208. The Commissioner shall have power, subject to commissioner
J . of Pensions may
review by the Secretary, to reject or refuse to recognize reject contracts
any contract for fees herein provided for whenever it sec.6,iMd.
shall be made to appear that any undue advantage has
been taken of the claimant in respect to such contract.
Sec. 6, ibid.
2209. That the act entitled "An act relating to ^^ in^gSmoiiSr
agents and attorneys in pension cases," approved June actuating to,'
twentieth, eighteen hundred and seventy-eight, is hereby ^^ 1884> v-
repealed : Provided, however, That the rights of the parties
shall not be abridged or affected as to contracts in pending
cases, as provided for in said act; but such contracts shall
be deemed to be and remain in full force and virtue, and
shall be recognized as contemplated by said act. Act of
July 4, 1884 (83 Stat. L., 99).
2210. That sections forty-seven hundred and sixty- sections 4768,
47bi7t find 47oo,
eight,1 forty-seven hundred and sixty-nine,2 and forty-
seven hundred and eighty-six 3 of the Revised Statutes are
hereby made applicable also to all cases hereafter filed 1884« v- 28. ?•*"•'
with the Commissioner of Pensions, and to all cases so
filed since June twentieth, eighteen hundred and seventy-
eight, and which have not been heretofore allowed, except
as hereinafter provided. Sec. 2, act of July 4, 1884 (23
Stat. L., 99).
2211. Every person who knowingly or willfully makes fa£|naltJffida\St
or aids, or assists in the making, or in any wise procures ^Sellers1 "dating
the making or presentation of any false or fraudulent affi- 30Jply7^ 1898> v<
davit, declaration, certificate, voucher, or paper or writing sec. 4746,u.s.
purporting to be such, concerning any claim for pension
or payment thereof, or pertaining to any other matter
within the jurisdiction of the Commissioner of Pensions or
of the Secretary of the Interior, or who knowingly or
willfully makes or causes to be made, or aids or assists in
the making, or presents or causes to be presented at any
pension agency any power of attorney or other paper
required as a voucher in drawing a pension, which paper
Paragraph 2220, post.
2 Paragraph 2221, post.
3 See act of July 4, 1884 (23 Stat. L. 99), paragraphs 2209 ante.
870
MILITARY LAWS OF THE UNITED STATES.
bears a date subsequent to that upon which it was actually
signed or acknowledged by the pensioner, and every per-
certlficate ft°rSon be^ore whom any declaration, affidavit, voucher, or
vouchersfetc. ° or other paper or writing to be used in aid of the prosecu-
tion of any claim for pension or bounty land or payment
thereof purports to have been executed who shall know-
ingly certify that the declarant, affiant, or witness named
in such declaration, affidavit, voucher, or other paper or
writing personally appeared before him and was sworn
thereto, or acknowledged the execution thereof, when, in
fact, such declarant, affiant, or witness did not personally
appear before him or was not sworn thereto, or did not
acknowledge the execution thereof, shall be punished by a
fine not exceeding five hundred dollars, or by imprison-
ment for a term of not more than five years. Act of July
7, 1898 (30 Stat. Z., 718).
PAYMENT OF PENSIONS.
Par.
2212. Pension agents.
2213. The same; bonds.
2214. Agencies to be grouped; quarterly
payments to be made.
2215. Blanks, vouchers.
2216. Vouchers sent to pensioners.
2217. Checks drawn to order of pen-
sioners.
2218. Oaths administered free by certain
officers of the United States.
2219. The same; fourth-class postmasters.
2220. Payment of pension certificates.
2221. Fees to be deducted.
2222. Mailing checks, presumptive evi-
dence of payment.
Par.
2223. Death of pensioner without widow
or child.
2224. Pensions under disabilities.
2225. Insane pensioners.
2226. Indian pensioners, may be paid in
silver.
2227. Disloyalty a bar.
2228,2229. The same; removal of dis-
ability.
2230. Desertion of wife.
2231. Pensions in foreign countries not
payable to attorney.
Pension agents,
appointment
and term of of-
fice.
Apr. 5, 1869, c.
10, ss. I, 2, v. 16,
pp. 6, 7.
Sec.4778,K.S.
Bond of pen-
sion agents.
Feb. 6, 1867, c.
32, v. 14, p. 391.
Sec.4779,K.S.
2212. The President is authorized to appoint, by and
with the advice and consent of the Senate, all pension
agents, who shall hold their respective offices for the term
of four years, unless sooner removed or suspended, as
provided by law, and until their successors are appointed
and qualified.
2213. All pension agents shall give bond, with good and
sufficient sureties, for such amount and in such form as
the Secretary of the Interior may approve.1
1 The act of June 30, 1890 (26 Stat. L., 187), contained the requirement that ''in
case of the sickness or unavoidable absence of any pension agent from his office, he
may, with the approval of the Secretary of the Interior, authorize the chief clerk, or
some other clerk employed therein, to act in his place, to sign official checks, and to
MILITAKY LAWS OF THE UNITED STATE8. 871
2214. The Secretary of the Interior is hereby author-
ized and directed to arrange the various agencies for the grgecp\ Mar. 3,
payment of pensions in three groups as he may think 18Q^arterfypTy-
proper, and may from time to time change any agency ments to groups-
from one group to another as he may deem convenient for
the transaction of the public business. * * * The
Secretary of the Interior is hereby fully authorized to cause
payments of pensions to be made for the fractional parts
of quarters created by such change, so as to properly
adjust all payments as herein provided. Section forty-
seven hundred and sixty-four of the Revised Statutes is
hereby so amended as to conform to the changes in the
time of payments provided herein, and is made applicable
thereto. Sec. 2, act of March 3, 1891 (25 Stat. Z., 1082).
2215. The Secretary of the Interior shall cause suitable y^chersjn0^
blanks for the vouchers mentioned in section forty -seven ticj^d s 5
hundred and sixty -four2 to be printed and distributed to Sec.4767,B.s.
the agents for the payment of pensions, upon which he
shall cause a note to be printed informing pensioners of the
fact that hereafter no pension will be paid, except upon
the vouchers issued as herein directed.
2216. Within fifteen days immediately preceding the
fourth day of March, June, September, and December in
each year, the several agents for the payment of pensions ^"Jy -f'J8™> c>
shall prepare a quarterly voucher for every person whose 19|^c 4^64 R g
pension is payable at his agency, and transmit the same by
mail, directed to the address of the pensioner named in
such voucher, who, on or after the fourth day of March,
June, September, and December next succeeding the date
of such voucher, may execute and return the same to the
agency at which it was prepared, and at which the pension
of such person is due and payable.
2217. Upon the receipt of such voucher, properly exe- check to be
cuted, and the identity of the pensioner being established each pensioner.
, i • ,i .1 i i ,1 rt • -lMd.,S.2,p.l94.
and proved in the manner prescribed by the Secretary of sec. 4765, B.S.
the Interior, the agent for the payment of pensions shall
immediately draw his check on the proper assistant treas-
urer or designated depositary of the United States for the
discharge all the other duties required by law of such pension agent; and, with like
approval, any pension agent may designate and authorize a clerk to sign the name
of the pension agent to official checks. The official bond given by the principal of
the office shall be held to cover and apply to the acts of the person appointed to act
in his place in such cases, and a new bond shall be required from all pension agents
now in office. Such acting officer shall, moreover, for the time being, be subject to
all the liabilities and penalties prescribed by law for the official misconduct, in like
cases, of the pension agent for whom he acts."
2 Paragraph 2216, post.
872 MILITARY LAWS OF THE UNITED STATES.
amount due such pensioner, payable to his order, and
transmit the same by mail, directed to the address of the
pensioner entitled thereto; but any pensioner may be
required, if thought proper by the Commissioner of Pen-
sions, to appear personally and receive his pension.
mfnfsSrld byao1- 2218. Hereafter all United States officers now authorized
ficjuner7,ei888, v. ^° administer oaths are hereby required and directed to
' administer any and all oaths required to be made by pen-
sioners and their witnesses, in the execution of their vouch-
ers for their pensions free of charge. J Act of June 7, 1888
(25 Stat. Z., 174), and March 1, 1889 (25 Stat. Z., 78%).
2219. Hereafter, in addition to the officers now authorized
oaths etcistert° administer oaths in such cases, fourth-class postmasters
v 2s|p.499' 1894> °^ the United States are hereby required, empowered, and
authorized to administer any and all oaths required to be
made by pensioners and their witnesses in the execution
of their vouchers with like effect and force as officers hav-
ing a seal; and such postmaster shall affix the stamp of his
office to his signature to such vouchers, and he is author-
Fees, ized to charge and receive for each voucher not exceeding
twenty-five cents, to be paid by the pensioner. Act of
August 23, 1894 (88 Stat. Z., 4#9).
penesi£?aand fee* 2220. The Commissioner of Pensions shall forward the
°f !$*riy'» p. certificate of pensions, granted in any case, to the agent
19|'ec.4768, R.s. f or paying pensions where such certificate is made payable,
and at the same time forward therewith one of the articles
of agreement filed in the case and approved by the Com-
missioner, setting forth the fee agreed upon between the
claimant and the attorney or agent, and where no agree-
ment is on file, as hereinbefore provided, he shall direct
that a fee of ten dollars only be paid the agent or attorney.
toPdedu<?t atteonr- 2221. It shall be the duty of the agent paying such pen-
nejb?jeess'io si°n to deduct from the amount due the pensioner the
Sec. 4769, R.S. amount of fee so agreed upon or directed by the Commis-
sioner to be paid where no agreement is filed and approved,
and to forward or cause to be forwarded to the agent or
attorney of record named in such agreement, or, in case
there is no agreement, to the agent prosecuting the case
the amount of the proper fee, deducting therefrom the sum
of thirty cents, in payment of his services in forwarding
the same.
Section 6 of the act of July 8, 1870 (16 Stat. L., 194; section 4784, Revised
Statutes), was expressly repealed by the act of March 23, 1896 (29 Stat. L., 74), and
oaths to pensioners in connection with their vouchers can no longer be administered
by pension agents.
MILITARY LAWS OF THE UNITED STATES. 873
2222. Hereafter a check or checks drawn by a pension
agent in payment of pension due, and mailed by him to the ceJJSJ£
address of the pensioner, shall constitute payment within v- 26- p- 187-
the meaning of section forty -seven hundred and sixty-five,
Revised Statutes, in the event of the death of a pensioner
subsequent to the mailing and before the receipt of said
check; and the amount which may have accrued on the
pension of any pensioner subsequent to the last quarterly
payment on account thereof and prior to the death of such
pensioner shall in the case of a husband be paid to his widow,
or if there be no widow to his surviving minor children
or the guardian thereof, and in the case of a widow to her
minor children. Act of June 30, 1890 (26 Stat. Z., 187).
2223. Hereafter whenever a pension certificate shall si5Sfh ielvinng
have been issued and the pensioner mentioned therein mln^chnd.110
dies before payment shall have been made, leaving no 26f p?ij?; 1890) v-
widow and no surviving minor children, the accrued pen- Sec.4765,R. s.
sion due on said certificate to the date of the death of said
pensioner may, in the discretion of the Secretary of the
Interior, be paid to the legal representatives of said pen-
sioner. Act of June 30, 1890 (26 Stat. L., 187).
2224. Hereafter no pension shall be paid to any person derlegaTSbn-
other than the pensioner entitled thereto, nor otherwise lU|^g 8 1882 v
than according to the provisions of this title;1 and no war-
rant, power of attorney, or other paper executed or pur-
porting to be executed by any pensioner to any attorney,
claim agent, broker, or other person shall be recognized by
any agent for the payment of pensions, nor shall any pen-
sion be paid thereon; but the payment to persons labor-
ing under legal disabilities may be made to the guardians
of such persons in the manner herein prescribed, and pen-
sions payable to persons in foreign countries may be made tries-
according to the provisions of existing laws.2 Act of
August 8, 1882 (22 Stat. Z., 374).
2225. In case of an insane invalid pensioner having
guardian, but having a wife or children dependent upon
him (the wife being a woman of good character), the Com-
missioner of Pensions is hereby authorized, in his discre-
tion, to cause the pension to be paid to the wife, upon her
properly executed vouchers, or in case there is no wife, to
1 Title LVII, Revised Statutes.
2 The act of March 1, 1893 (27 Stat. L., 523), contained the requirement that
'from and after July 1, 1893, no pension shall be paid to a nonresident, who is not
a citizen of the United States, except for actual disabilities incurred in the service."
This statute was expressly repealed by the act of March 2, 1895 (28 Stat. L., 703).
874 MILITARY LAWS OF THE UNITED STATES.
the guardian of the children, upon the properly executed
voucher of such guardian, and in like manner to cause the
pension of invalid pensioners who are or may hereafter be
imprisoned as punishment for oft'enses against the laws to
be paid while so imprisoned to their wives or the guardians
of their children. Ibid.
Indian pen- 2226. And pensions to Indian pensioners residing in the
sioners; pay- .f . -, .
ments m stand- Indian Territory may be paid in person by the pension
agent, upon a suitable voucher, at some convenient point
in said Territory, which, together with the form and man-
payments inner of identification of the pensioners, may be prescribed
cash, when J
made. by the Secretary of the Interior; such payments to be
made in standard silver, at least once in each current year.
And payments in person shall be made to the pensioner,
in cash, by the pension agent whenever in the discretion
of the Commissioner of Pensions such, personal payment
shall be by him deemed necessary or proper to secure to
the pensioner his rights; and the necessary and actual
Expenses of expenses of such pension agent in making such payments
shall be paid by the Secretary of the Interior upon prop-
erly executed vouchers, out of the contingent fund appro-
priated for the use of the Pension Office. Ibid. * * *
ba?top^nsion. & 2227> No money on account of pension shall be paid to
sec. 4716, K.S. anv person? or ^0 the widow, children, or heirs of any
deceased person, who in any manner voluntarily engaged
in or aided or abetted the late rebellion against the author-
ity of the United States.1
a ^^SivS 2228- The law2 prohibiting the payment of any money
inMa?ai3 Cai877- on account of pension to any person, or to the widow, chil-
2?Up 34o1892' v' aren? or heirs of any deceased person, who in any manner
engaged in or aided or abetted the late rebellion against
the authority of the United States, shall not be construed
to apply to such persons as afterwards voluntarily enlisted
in either the Navy or Army of the United States, and who,
while in such service, incurred disability from a wound or
injury received or disease contracted in the line of duty.3
Act of August 1, 1892 (27 Stat. Z., 340).
1 In addition to the cases referred to in pars. 2228 and 2229, the requirements of sec-
tion 4716 of the Revised Statutes have been repealed in part by the following enact-
ments: Section 5, act of January 29, 1887 (24 Stat. L., 371), paragraphs 2159 to 2164,
ante; section 6, act of July 27, 1892 (27 ibid., 281), paragraphs 2173 to 2167, ante.
2 Section 4716, Revised Statutes, paragraph 2227, ante.
3 The act of August 1, 1892 (27 Stat. L., 340), replaces the act of March 3, 1877 (19
ibid., 403), which modified section 4716, Revised Statutes, in its application to the
widows, children, and heirs of those persons who had joined in the rebellion of 1861-
1865 against the United States, but who had subsequently enlisted in the Army of the
United States.
MILITARY LAWS OF THE UNITED STATES. 875
2229. That section forty-seven hundred and sixteen of
the Revised Statutes be, and the same is hereby, repealed, v- J1' p- 136-
so far as the same may be applicable to the claims to pension
of dependent parents of soldiers, sailors, and marines who
served in the Army or Navy of the United States during
the war with Spain. Act of April 18, 1900 (31 Stat. L.,
136).
2230. In case a resident pensioner of the United States vi™esame; pr°-
shall for a period of over six months desert his' lawful so^mg.1899' v'
wife, she being a woman of good moral character and in Sec'*766»B-s-
necessitous circumstances, or, if he have no lawful wife,
shall desert his legitimate minor child or children under
sixteen years of age, or his permanently helpless and de-
pendent child, the Commissioner of Pensions is hereby
directed, upon being satisfied by competent evidence of
such desertion, to cause one-half of the pension due or to
become due said pensioner during the continuance of such
desertion to be paid to the wife, or in case there is no
wife, to the legal guardian of the child or children: Pro-
vided further, That when a soldier or sailor enters into a
State home for soldiers or sailors as an inmate thereof,
one-half of his pension accruing during his residence
therein shall be paid to his wife, she being a woman of
good moral character and in necessitous circumstances, or
if there be no wife, then to his child or children under
sixteen years of age, or his permanently helpless and de-
pendent child, if any, unless such wife and children shall
also be inmates of the same institution or of some home pro-
vided for the wives and children of soldiers and sailors:
Provided further, That if any such pensioner is or shall
become an inmate of a National Soldiers' Home one-half
of the pension drawn in his behalf or to which he may
become entitled during his residence therein shall be paid
by the treasurer of that institution to such pensioner's
wife, she being in necessitous circumstances and a woman
of good moral character, or, if there be no wife, to the
legal guardian of the minor child or children, or the per-
manently dependent and helpless child or children of such
pensioner, on the order of the Commissioner of Pensions.1
Act of March 3, 1899 (30 Stat. Z., 1379).
* *• * •* *
1 For the proviso of this statute restricting the issue of pensions to widows, see
par. 2224, ante.
For payment of pensions to inmates of the Soldiers' Home, of the National Home
for Disabled Volunteer Soldiers, and the Government Hospital for the Insane, see
the chapters so entitled.
876 MILITARY LAWS OF THE UNITED STATES.
fo£ 2231- Hereafter no pensions shall be paid upon power
piohibpited!oners of attorney from pensioners residing in foreign countries.1
3oS4'1898'v' Act of March 14, 1898 (30 Stat. L., 276).
ACCRUED AND UNCLAIMED PENSIONS.
Par.
2232. Accrued pensions.
X'Z6Z. Accrued pensions.
2233. Payment of accrued pensions at
death of nensionfvr.
Par.
2234. Unclaimed pensions.
death of pensioner.
siotcscrued pen" 2232- If any pensioner has died or shall hereafter die; or
i873,Cv2i7*p^574: ^ anv Person entitled to a pension, having an application
Sec.i7i8, R.S. therefor pending, has died or shall hereafter die, his widow,
or if there is no widow, the child or children of such person,
under the age of sixteen years, shall be entitled to receive
the accrued pension to the date of the death of such per-
son. Such accrued pension shall not be considered as a
part of the assets of the estate of deceased, nor liable to be
applied to the payment of the debts of said estate in any
case whatever, but shall inure to the sole and exclusive
benefit of the widow or children; and if no widow or child
survive, no payment whatsoever of the accrued pension
shall be made or allowed, except so much as may be neces-
sary to reimburse the person who bore the expenses of the
last sickness and burial of the decedent, in cases where he
did not leave sufficient assets to meet such expenses.8
crued^ensio^to 2233< From and after the twenty-eighth day of Septem-
death of pension- ber? eighteen hundred and ninety-two, the accrued pension
to the date of the death of any pensioner, or of any person
entitled to a pension having an application therefor pend-
ing, and whether a certificate therefor shall issue prior or
subsequent to the death of such person, shall, in the case
of a person pensioned, or applying for pension, on account
Marri2bui895'v °^ his disabilities or service, be paid, first, to his widow;
28, p. %4. second, if there is no widow, to his child or children under
the age of sixteen years at his death; third, in case of a
widow, to her minor children under the age of sixteen
is enactment repeals the provision of section 4766, Revised Statutes, as
amended by the act of August 8, 1882 (22 Stat. L., 374), that "pensions payable to
persons in foreign countries may be made according to the provisions of existing
laws" (paragraph 2224, ante], and brings such payments within the requirements of
sections 4764, 4765, and 4766 of the Revised Statutes, paragraphs 2216, 2217 and
2224, ante.
2 The act of June 3, 1884 (23 Stat. L., 35), contains the requirement "that the heirs
or legal representatives of any officer whose muster into the service has been or shall
be amended thereby shall be entitled to receive the arrears of pay due such officer,
and the pension, if any, authorized by law, for the grade into which such officer is
mustered under its provisions." See also the act of March 1, 1889 (25 Stat. L., 782).
MILITARY LAWS OF THE UNITED STATES. 877
years at her death. Such accrued pension shall not be con- esj^ M8ete of
sidered a part of the assets of the estate of such deceased
person, nor be liable for the payment of the debts of said
estate in any case whatsoever, but shall inure to the sole
and exclusive benefit of the widow or children. And if no
widow or child survive such pensioner, and in the case of sl<
his last surviving child who was such minor at his death,
and in case of a dependent mother, father, sister, or brother,
no payment whatsoever of their accrued pension shall be
made or allowed except so much as may be necessary to
reimburse the person who bore the expense of their last
sickness and burial, if they did not leave sufficient assets
to meet such expense. And the mailing of a pension
check, drawn by a pension agent in payment of a pension
due, to the address of a pensioner, shall constitute pay-
ment in the event of the death of a pensioner subsequent
to the execution of the voucher therefor. And all prior
laws relating to the payment of accrued pension are hereby
repealed. Act of March 2, 1895 (28 Stat. L., 964).
2234. The failure of any pensioner to claim his or her g.unciaimed pen-
pension %f or three years after the same shall have become ^sec.^June^is,
due shall be deemed presumptive evidence that such pen- Sec.«ife,R.s.
sion has legally terminated by reason of the pensioner's
death, remarriage, recovery from the disability, or other-
wise, and the pensioner's name shall be stricken from the
list of pensioners, subject to the right of restoration to the
same on a new application by the pensioner, or, if the pen-
sioner is dead, by the widow or minor children entitled to
receive the accrued pension, accompanied by evidence
satisfactorily accounting for the failure to claim such pen-
sion, and by medical evidence in cases of invalids who were
not exempt from biennial examinations as to the continu-
ance of the disability.
ASSIGNMENTS, ETC.
2235. Any pledge, mortgage, sale, assignment, or trans- tr^?Sferle<?fgpen-
fer of any right, claim, or interest in any pension which sigeCv°2idFeb 28
has been, or may hereafter be, granted, shall be void and1883' v- 22, P- 432.'
of no effect, and any person -who shall pledge, or receive
as a pledge", mortgage, sale, assignment or transfer of any
right, claim, or interest in any pension, or pension certifi-
cate, which has been, or may hereafter be granted or issued,
or who shall hold the same as collateral security for any
debt, or promise, or upon any pretext of such security, or
878
MILITARY, LAWS OF THE UNITED STATES.
Sec! 47*4?,' R.S. promise, shall be guilty of a misdemeanor, and upon con-
viction thereof shall be fined in a sum not exceeding one
hundred dollars and the costs of the prosecution; and any
person who shall retain the certificate of a pensioner and
refuse to surrender the same upon the demand of the Com-
missioner of Pensions, or a United States pension agent,
or any other person, authorized by the Commissioner of
Pensions, or the pensioner, to receive the same shall, be
guilty of a misdemeanor, and upon conviction thereof shall
be fined in a sum not exceeding one hundred dollars and
the costs of the prosecution. Sec. 2, act of February 28,
1883(88 Stat. L., 432).
2236. No sum of money due, or to become due, to any
pensioner, shall be liable to attachment, levy, or seizure by
sec.4747,R.s. or un(jer any iegaj or equitable process whatever, whether
the same remains with the Pension Office, or any officer or
agent thereof, or is in course of transmission to the pen-
sioner entitled thereto, but shall inure wholly to the benefit
of such pensioner.
MEDICAL EXAMINING BOARDS.
Pension not li-
able to attach-
ment, etc.
Ibid.
Par.
2237. Appointment; duties.
2238. Reports.
2239. Fees.
2240. Examinations
2241. Report accessible to claimant.
2242. Medical referee, etc.
2243. Civil examining surgeons.
Par.
2244. Expert examinations.
2245. Nonresident claimants.
2246. Special examinations.
2247. Inspection of agencies by Commis-
sioner of Pensions, etc.
2248. Suspension of pensions.
2237> ^he Commissioner of Pensions is hereby authorized
point surgeons, ^o appoint surgeons who, under his control and direction
shall make such examination of pensioners and claimants
for pension or increased pension as he shall require; and
Boards of sur- he shall organize boards of surgeons, to consist of three
members each, at such points in each State as he shall deem
necessary, and all examinations, so far as practicable, shall
be made by the boards, and no examination shall be made
ofSsarCieonsb°ard ^v one surgeon excepting under such circumstances as
make it impracticable for a claimant to present himself
Proviso*.
before a board: Provided, That the Commissioner may,
when in his opinion the exigencies of the service require
**? organize a board of three surgeons who, under his di-
rection, shall review the work of any regularly appointed
board or surgeon : Provided further, That all examinations
MILITARY LAWS OF THE UNITED STATES. 879
shall be thorough and searching, and the certificate contain
a full description of the physical condition of the claimant
at the time, which shall include all the physical and rational
signs and a statement of all structural changes. Sec. 4, act
of July 25, 1882 (82 Stat. L., 175}.
2238. The report of such examining surgeons shall spe- §ec°2?i896 v.
cifically state the rating which, in their judgment, the ^ P- *79-'
applicant is entitled to. Act of December m, 1896 (29
Stat. L., 479).
2239. The fee for each examination, and satisfactory cer-
tificate thereof, shall be two dollars to each member when
made by a board, and two dollars when made by one sur-
geon: Provided, That when a claimant is so disabled as
not to be able to present himself to a board of surgeons for
examination, the Commissioner may order a surgeon to
make the examination at the claimant's residence; and the
fee for such examination shall be two dollars, in addition
to the payment of the actual traveling expenses of the sur-
geon: Provided further, That no fee shall be allowed or Proviso,
paid to any member of such board of examining surgeons
who does not actually participate in such examination and
sign the certificate thereof.1 Sec. 4, act of July 25, 1882
(m Stat. L.,175).
2240. Each member of each examining board shall, as ?xam*nat,j?n8-
Apr. 4, 1900, v.
now authorized by law, receive the sum of two dollars for 81« P- 61-
the examination of each applicant whenever five or a less
number shall be examined on any one day, and one dollar
for the examination of each additional applicant on such
day: Provided, That if twenty or more applicants appear
on one day, no fewer than twenty shall, if practicable, be
examined on said day, and that if fewer examinations be
then made, twenty or more having appeared, then there
shall be paid for the first examinations made on the next
examination day the fee of one dollar only until twenty
examinations shall have been made: Provided further, That
no fees shall be paid to any member of an examining board
unless personally present arid assisting in the examination
of applicant.2 Act of April 4, 1900 (31 Stat. L., 61).
1This section replaces, in part, section 4775, Revised Statutes, which authorized the
appointment of boards of examining: surgeons and prescribed their fees.
2 A similar provision will be found in the acts of July 2, 1886 (24 Stat. L., 122);
March 1, 1887 (24 Stat. L., 440); June 7, 1888 (25 Stat. L., 174); March 1, 1889 (25
Stat. L., 782); June 30, 1890 (26 Stat. L., 188); March 3, 1891 (26 Stat. L., 1082); July
13, 1892 (27 Stat. L., 119); March 1, 1893 (27 Stat. L., 524); July 18, 1894 (28 Stat. L.,
113) ; March 2, 1895 (28 Stat. L., 403) ; March 6, 1896 (29 Stat. L., 45); Dec. 22, 1896
(ibid., 479); March 1, 1898 (30 Stat. L., 276) ; and February 4, 1899 (ibid., 820).
880 MILITARY LAWS OF THE UNITED STATES.
224L The ^port of such examining surgeons when filed
28^yiil:1894>v' in tne Pension Office shall be open to the examination and
inspection of the claimant or his attorney, under such rea-
sonable rules and regulations as the Secretary of the Inte-
rior may provide. Act of July 18, 1894 (%8 Stat. L.,113).
Medical referee 2242. The Secretary of the Interior is authorized to ap-
and examining ^
surgeon. point a duly qualified surgeon as medical referee who,
XoifUtj s. 38, p. i -
577. under the control and direction of the Commissioner of
see. 4< <«, U.S. ._ . in!
.Pensions, shall have charge of the examination and revi-
sion of the reports of examining surgeons, and such other
duties touching medical and surgical questions in the Pen-
sion Office as the interests of the service may demand;
and his salary shall be two thousand five hundred dollars
per annum. And the Secretary of the Interior is further
authorized to appoint such qualified surgeons (not exceed-
ing four) as the exigencies of the service may require, who
ma}^ perform the duties of examining surgeons when so
required, and who shall be borne upon the rolls as clerks of
the fourth class; but such appointments shall not increase
the clerical force of said Bureau.
of^vnexamin- 2243> ^ne Commissioner of Pensions is empowered to
inf&SrgsOI35 appoint, at his discretion, civil surgeons to make the pe-
57|'ec 4777 R s ri°dical examinations of pensioners which are or may be
required by law, and to examine applicants for pension,
where he deems an examination by a surgeon appointed
by him necessary; and the fee for such examinations, and
the requisite certificates thereof in duplicate, including
postage on such as are transmitted to pension agents, shall
be two dollars, which shall be paid by the agent for paying
pensions in the district within which the pensioner or
claimant resides, out of any money appropriated for the
payment of pensions, under such regulations as the Com-
missioner of Pensions may prescribe.
geox?sptortmake 2244. The Commissioner may, when in his judgment the
exjauTy 2M8825; v. degree of disability can not be determined truthfully or
22, p. 176. satisfactorily excepting by expert examination, employ an
expert, not a regularly appointed surgeon, to make the
examination ; and the fee for such examination shall be five
Proviso. dollars: Provided, That the fee for an expert examination
Fees. shall not be paid to any regularly appointed examining
surgeon. Act of July 25, 1892 (08 Stat. L., 176).
2245. The fee for the examination of claimants who re-
' 882' v' side out of tne United States shall not exceed ten dollars,
which shall be paid, upon the presentation of satisfactory
MILITARY LAWS OF THE UNITED STATES. 881
vouchers, out of the appropriation for the payment of the
examining surgeons, and through the United States con-
sulate nearest to the claimant's place of residence. Act of
July 25, 1882 (22 Stat. Z., 176).
2246. The Commissioner of Pensions shall have the commissioner
of Pensions may
same power as heretofore to order special examinations order special ex-
. . . _ aminations.
whenever, in his ludgrnent, the same may be necessary, sec. 3. June 21,
. . , . . , 1879, V. 21, p. 30.
and to increase or reduce the pension according to right
and justice; but in no case shall a pension be withdrawn
or reduced except upon notice to the pensioner and a hear-
ing upon sworn testimony, except as to the certificate of
the examining surgeon.1 Sec. 3, act of June 81, 1879 (21
Stat. Z., 30).
2247. The Commissioner of Pensions may, when in his inspection of
judgment it shall be deemed necessary or proper, visit in^Aug!^| i882,v.
person, for the purpose of examination and inspection, or
may send any one or more of the officers of his bureau for
that purpose, any one of the pension agencies or medical
examining boards or surgeons; and the necessary and
actual expenses of such visits shall be paid by the Secretary
of the Interior, upon properly executed vouchers, out of
the contingent fund of said bureau. Act of August 8,
1882 (22 Stat. L., 373).
SUSPENSION OF PENSIONS — PENSION A VESTED RIGHT.
2248. Any pension heretofore or that may hereafter be
granted to any applicant therefor under any law of the
United States authorizing the granting and payment of 1893> v- 28> p- 18-
pensions, on application made and adjudicated upon, shall
be deemed and held by all officers of the United States to
be a vested right in the grantee to that extent that pay- deemed0? ested
ment thereof shall not be withheld or suspended until, nghts-
after due notice to the grantee of not less than thirty days,
the Commissioner of Pensions, after hearing all the evi-
dence, shall decide to annul, vacate, modify, or set aside
the decision upon which such pension was granted. Such
notice to grantee must contain a full and true statement
of any charges or allegations upon which such decision
granting such pension shall be sought to be in any manner
disturbed or modified. Act of December 21, 1893 (28 Stat.
L., 18). _
Sections 4771, 4772, and 4773, Revised Statutes, were repealed by the act of June
21, 1879 (21 Stat. L., 30).
22924—08, - 56
882
MILITARY LAWS OF THE UNITED STATES.
INVESTIGATIONS.
Par.
2249. Special investigations; oaths.
2250. The same; stenographers.
Par.
2251. Administration of oaths.
2252. Subpoenas to witnesses; fees.
Investigation
of attempts at
fraud.
2249. The Commissioner of Pensions is authorized to
Mar. 3, 1873, c. detail, f rom time to time, any of the clerks in his office to
284, s. 30, v. 17, p. investigate any suspected attempts to defraud the United
sec. 474, K. s. States, in or affecting the administration of any law rela-
tive to pensions, and to aid in prosecuting any person
implicated, with such additional compensation as is cus-
tomary in cases of special service. Any person so de-
tailed shall have the power to administer oaths in the
course of any such investigation.
inS^estiS|ath?g 2250f ^e Commissioner of Pensions is authorized to
tranptsCattefraud" Detail, ^ rom time to time, clerks or persons employed in his
•jsTs^o'v8!?' c'°ffice to make special examinations into the merits of such
^5'18|2e% \? y pension or bounty land claims, whether pending or adjudi-
17|ec. 4744 K.s. catec^ as ne mav deem proper, and to aid in the prosecu-
tion of any party appearing on such examinations to be
guilty of fraud, either in the presentation or in procuring
the allowance of such claims; and any person so detailed
shall have power to administer oaths and take affidavits
and depositions in the course of such examinations, and to
orally examine witnesses, and may employ a stenographer,
when deemed necessary by the Commissioner of Pensions,
in important cases, such stenographer to be paid by such
clerk or person, and the amount so paid to be allowed in
his accounts. Sec. 2, act of July 25, 1882 (22 Stat. Z. , 175).
2251t ^e same Power to administer oaths and take affi-
oaths, davits, which by virtue of section forty-seven hundred and
losi' f°rty-four of the Revised Statutes is conferred upon clerks
detailed by the Commissioner of Pensions from his office
to investigate suspected attempts at fraud on the Govern-
ment through and by virtue of the pension laws, and to
aid in prosecuting any person so offending, shall be, and
is hereby, extended to all special examiners or additional
special examiners employed under authority of Congress
to aid in the same purpose. Sec. 3, act of March 3, 1891
(26 Stat. Z., 108$).
wftneSenas to 2252. In addition to the authority conferred by section
i882Cv V plyi75 one nundred and eighty-four, title four of the Revised
Statutes, any judge or clerk of any court of the United
States in any State, District, or Territory shall have power,
upon the application of the Commissioner of Pensions, to
i v 26
MILITARY LAWS OF THE UNITED STATES. 883
issue a subpoena for a witness, being within the jurisdic-
tion of such court, to appear, at a time and place in the
subpoena stated, before any officer authorized to take depo-
sitions to be used in the courts of the United States, or
before any officer, clerk, or person from the Pension Bu-
reau designated or detailed to investigate or examine into
the merits of any pension claim and authorized by law to
administer oaths and take affidavits in such investigation
or examination, there to give full and true answers to such
written interrogatories and cross interrogatories as may be
propounded, or to be orally examined and cross-examined
upon the subject of such claim; and witnesses subpoenaed fe^itnesses
pursuant to this and the preceding section shall be allowed
the same compensation as is allowed witnesses in the courts
of the United States, and paid in the same manner. Sec.
3, act of July 25, 1882 (22 Stat. Z., 175].
CRIMINAL OFFENSES.
Par.
2253. Senators, Kepresentatives, etc., tak-
ing compensation, etc.
Par.
2254. False affidavits.
2255-2256. Embezzlement.
2253. No Senator, Representative, or Delegate, after his
election and during his continuance in office, and no head united8 state icf
of a Department, or other officer or clerk in the employ of a JJJfeii 1864 c
the Government, shall receive or agree to receive any com- 11|^- 1|,^. 123.^
pensation whatever, directly or indirectly, for any services
rendered, or to be rendered, to any person, either by him-
self or another, in relation to any proceeding, contract,
claim, controversy, charge, accusation, arrest, or other
matter or thing in which the United States is a party, or
directly or indirectly interested, before any Department,
court-martial, Bureau, officer, or any civil, military, or
naval commission whatever. Every person offending
against this section shall be deemed guilty of a misde-
meanor, and shall be imprisoned not more than two years,
and fined not more than ten thousand dollars, and shall,
moreover, by conviction therefor, be rendered forever
thereafter incapable of holding any office of honor, trust,
or profit under the Government of the United States.
1 For other statutes creating criminal offenses in connection with the operation of
the pension laws, see section 4, act of July 4, 1884 (23 Stat. L., 99), par. 2206, ante;
section 2, act of August 5, 1892 (27 Stat. L., 349), par. 2156, ante; section 3, act of
Jan. 29, 1887 (24 ibid., 371), par. 2161, ante; section 3, act of June 27, 1890 (26 ibid.,
183), par. 2153, ante, and the act of July 7, 1898 (30 ibid., 718), par. 2211, ante.
884 MILITARY LAWS OF THE UNITED STATES,
fa£enaffiJavit 2254> Every person who knowingly or willfully makes
vouche«fSc?ng or a^s or assists m the making or in any wisa procures
3oJp! 720. 1898> v' ^e making or presentation of any false or fraudulent affi-
sec. 4746,n.s. davi^ declaration, certificate, voucher, or paper or writing
purporting to be such concerning any claim for pension,
or payment thereof, or pertaining to any other matter
within the jurisdiction of the Commissioner of Pensions,
or the Secretary of the Interior, or who knowingly or
willfully makes or causes to be made, or aids or assists in
the making, or presents or causes to be presented at any
pension agency any power of attorney or other paper
required as a voucher in drawing a pension, which paper
bears a date subsequent to that upon which it was actually
signed or acknowledged by the pensioner, and every per-
son before whom any declaration, affidavit, voucher, or
other paper or writing to be used in aid of the prosecu-
tion of any claim for pension or bounty land or payment
thereof purports to have been executed who shall know-
ingly certify that the declarant, affiant, or witness named
in such declaration, affidavit, voucher, or other paper or
writing personally appeared before him and was sworn
thereto, or acknowledged the execution thereof, when, in
fact, such declarant, affiant, or witness did not personally
appear before him or was not sworn thereto, or did not
acknowledge the execution thereof, shall be punished by
a fine not exceeding five hundred dollars, or by imprison-
ment for a term of not more than five years.
of^e^sfo^by 2255- If anJ guardian having, the charge and custody of
**se<%if486,R.s. ^e pension of his ward shall embezzle the same in viola-
tion of his trust, or fraudulently convert the same to his
own use, he shall be punished by fine not exceeding two
thousand dollars, or imprisonment at hard labor for a term
not exceeding five years, or both, at the discretion of the
court.
Feb^mi89i v 2256. Every guardian, conservator, curator, committee,
26, p. 746. tutor, or other person having charge and custody in a
fiduciary capacity of the pension of his ward, who shall
embezzle the same in violation of his trust, or fraudu-
£0^4783, B.S. lently convert the same to his own use, shall be punished
by fine not 6xceeding two thousand dollars or imprison-
ment at hard labor for a term not exceeding five years, or
both, at the discretion of the court. Act of February 10,
1891 (26 Stat. L., 746).
MILITARY LAWS OF THE UNITED STATES.
885
MISCELLANEOUS PROVISIONS.
Par.
2261. Military pay and pension prohib-
ited.
2262. Pensions of civilian employees.
n^n usance
Sec< *788,B.s.
Par.
2257. But one pension to be drawn at one
time.
2258. Continuance of pension.
2259. Pensions not to be withheld.
2260. Pensions of officers in arrears not
to be withheld.
2257. Nothing in this Title1 shall be so construed as to sio°nnay «&£
allow more than one pension at the same time to the same
person, or to persons entitled jointly; but any pensioner
who shall so elect may surrender his certificate, and receive,
in lieu thereof, a certificate for any other pension to which
he would have been entitled had not the surrendered cer-
tificate been issued. But all payments previously made
for any period covered by the new certificate shall be
deducted from the amount allowed by such certificate.2
2258. All pensioners whose names are now on the pen-
sion roll or who are entitled to restoration to the roll under
any act of Congress, shall be entitled to the continuance
of such pensions under the provisions and limitations of
this Title, and to such further increase of pension as is
herein provided.
2259. The provisions of law which allow the withholding toPb?w\The?d0t
of the compensation of any person who is in arrears shall 77Mva 5,2p. si36' c'
not be construed to authorize the pension of any pensioner Sec* *™4,R.s.
of the United States to be withheld.
2260. Hereafter no pension shall be allowed or paid to
any officer, noncommissioned officer, or private in the
Army, Navy, or Marine Corps of the United States, either 26Mpario821891
on the active or retired list.3 Act of March 3, 1891 (26
Stat. Z., 108$).
2261. No person in the Army, Navy, or Marine Corps
shall draw both a pension as an invalid, and the pay of his 10Apr
rank or station in the service,
which the pension was granted be such as to occasion his
employment in a lower grade, or in the civil branch of the
service.
1 Title LVII, Revised Statutes. By the terms of section 4722 of the Revised Statutes
the provisions of this Title are made applicable to the officers and privates of the
Missouri State militia and the Missouri provisional militia in certain cases.
2 The act of March 1, 1893 (27 Stat. L., 524) , contains the requirement that no pen-
sion shall be paid to a nonresident who is not a citizen of the United States, except
for actual disabilities incurred in the service. This statute was repealed by the act of
March 2, 1895 (28 Stat. L., 703).
'Section 2 of the act of August 29, 1890 (26 Stat. L., 371), contained the requirement
that "Hereafter no officer of the Army, Navy, or Marine Corps on the retired list
shall draw or receive any pension under any law."
unless the disability for Augvi66i84i fl'
886 MILITARY LAWS OF THE UNITED STATES.
c? the 2262< A11 Persons who, under and by virtue of the first
pensioSewith-sec^on °^ *^e ac^ entitled "An act supplementary to the
Mar. i, 1879, v. several acts relating to pensions," approved March third,
20, p. 327. eighteen hundred and sixty-five, were deprived of their
pensions during any portion of the time from the third of
March, eighteen hundred and sixty-five, to the sixth of
June, eighteen hundred and sixty-six, by reason of their
being in the civil service of the United States, shall be paid
their said pensions, withheld by virtue of said section of
the act aforesaid, for and during the said period of time
from the third of March, eighteen hundred and sixty-five,
. to the sixth of June, eighteen hundred and sixty-six.1
Act of March 1, 1879 (20 Stat. Z., 387).
'The act of June 6, 1866 (14 Stat. L., 57), repealed the requirement of the act of
March 3, 1865, depriving certain persons employed in the civil service of the United
States of pensions to which they were otherwise entitled.
CHA'PTER
THE SOLDIERS' HOME.
Par.
2263-2265. Board of commissioners;
duties.
2266. Inspections.
2267, 2268. Officers, appointment, duties.
2269-2274. Funds for support of Home.
Par.
2275-2278. Admission and discharge of
inmates.
2279. Outdoor relief .
2280-2282. Pensions to inmates.
2283-2286. Miscellaneous requirements.
BOARD OF COMMISSIONERS.
2263. The Board of Commissioners of the Soldiers'
Home shall hereafter consist of the General in Chief com-
manding the Army, the Surgeon-General, the Commissary- M
General, the Adjutant-General, the Quartermaster-General, MakVis
the Judge- Advocate-General and the Governor of the Home,
and the General in Chief shall be President of the Board,
and any four of them shall constitute a quorum for the
transaction of business; whose duty it shall be to examine
and audit the accounts of the treasurer quarter-yearly, and
to visit and inspect the Soldiers' Home at least once in
every month. The majority shall also have power to estab-
lish, from time to time, regulations for the general and
internal direction of the institution, to be submitted to the
Secretary of War for approval; and may do any other acts
necessary for the government and interests of the same, as
authorized by this chapter. 1 Sec. 10, act of March 3, 1883,
(22 Stat. L., 565}.
1 The "Military Asylum for the Relief and Support of Invalid and Disabled Soldiers
of the Army of the United States" was established by the act of March 3, 1851 (9
Stat. L., 595) (a). For the support of the institution thus established the following
funds were set apart: (a) Any unexpended balance of the appropriation made by
the act of March 2, 1847 (9 Stat. L., 149), for the benefit of soldiers disabled by
wounds; (b) the sum of $118,791.19, levied by the commanding general of the
Army of the United States in Mexico, during the war with that republic, for the
benefit? of the soldiers of the United States Army, regulars and volunteers, who were
engaged in that war, but taken possession of as funds of the United States and placed
in the Treasury; (c) all stoppages and fines adjudged against soldiers by sentence of
a The act of Congress establishing the Military Asylum does not constitute the commissioners a cor-
poration with capacity to sue and be sued. V Opin. Att. Gen., 398; see note 1 to paragraph 2285,
post.
887
888 MILITARY LAWS OF THE UNITED STATES.
DUTIES OF COMMISSIONERS.
.sitesand build- 2264. The commissioners of the Soldiers' Home, by and
g sec. s, ibid., p. wjtn the approval of the President, shall procure for imme-
Sec. 4817, U.S. (Jjate use, at a suitable place or places, a site or sites for
the Soldiers' Home, and if the necessary buildings can not
be procured with the sites, to have the same erected, hav-
ing due regard to the health of the locations, facility of
access, and economy, and giving preference to such places
as, with the most convenience and least cost, will accom-
modate the persons entitled to the benefits of the Soldiers'
Home.
m?s09a[on°erTto 2265- Tne board of commissioners of the Soldiers' Home
pwt,eetc.nual re snall every year report in writing to the Secretary of War,
22fpar565.1883' v> giving a Wl statement of all receipts and disbursements of
money, of the manner in which the funds are invested of
any changes in the investments and the reasons therefor,
of all admissions and discharges, and generally of all facts
that may be necessary to a full understanding of the con-
dition and management of the Home. The Secretary of
War shall have power to call for and require any omitted
facts which in his judgment should be stated to be added.
secretary of This annual report shall be, by the Secretary of War,
War to transmit ' J. _J
report, etc., to together with the report of the inspecting officer herein-
after provided for, transmitted to Congress at the first
session thereafter, and he shall also cause the same to be
published in orders to the Army, a copy thereof to be
deposited in each garrison and post library. Act of March
3,1883(2% Stat. L.,565}.
court-martial, over and above any amount that may be due for tLe reimbursement
of Government or of individuals; (d) all forfeitures on account of desertion; (e) all
moneys, not exceeding two-thirds of the balance on hand of the hospital fund, and
of the post fund of each military station, after deducting the necessary expenses of
the year; (a) and (f) all moneys belonging to the estates of deceased soldiers, which
now are or may hereafter be unclaimed for the period of three years subsequent to
the death of said soldier or soldiers, to be repaid by the commissioners of the insti-
tution, upon the demand of the heirs or legal representatives of "the deceased; (g)
there shall also be ' ' deducted from the pay of every noncommissioned officer, musi-
cian, artificer, and private of the Army of the United States the sum of 25 cents (6)
per month, which sum so deducted shall, by the Pay Department of the Army, be
passed to the credit of the commissioners of the asylum, who are hereby authorized
to receive all donations of money or property made by any person or persons for the
benefit of the institution, and hold the same for its sole and exclusive use." Sec. 7,
act of March 3, 1851, 9 Stat. L., 596.
In passing upon recommendations made by the board of commissioners of the
Soldiers' Home, under section 4815 of the Revised Statutes, the Secretary of War is
invested with a discretionary power to approve or disapprove the same. XVII
Opin. Att. Gen., 449,
a This clause was repealed by section 2 of the act of July 5, 1862. (12-Stat. L., 508. )
b The deduction from the monthly pay of enlisted men, fixed at 25 cents per month by section 7,
act of March 3, 1851 (9 Stat. L., 596), was reduced to 12* cents by section 7, act of March 3, 1869 (11
Stat. L., 424).
MILITARY LAWS OF THE UNITED STATES. 889
INSPECTIONS.
2266. The Inspector-General of the Army shall, in per-
son, once in each year thoroughly inspect the Home, its J
records, accounts, management, discipline, and sanitary 18t^v.
condition, and shall report thereon in writing, together
with such suggestions as he desires to make. Sec. 2, act
of March 3, 1883 (22 Stat. Z., 664).
OFFICERS.
2267. The officers of the Soldiers' Home shall consist of
a governor, a deputy governor, and a secretary, for each 25
separate site of the home, the latter to be also the treas-
urer; and the officers shall be taken from the Army and
appointed or removed, from time to time, as the interests
of the institution may require, by the Secretary of War,
on the recommendation of the board of commissioners.1
2268. The governor and all other officers of the Home
shall be selected by the President of the United States, and |y g£
the treasurer of the Home shall be required to give a bond Str?ea8urer to
in the penal sum of twenty thousand dollars for the faith- gigfcb?nMar 3
ful performance of his duty.2 Sec. 7, act of March 3, 1883™*^- ^.P-M*.'
(WStat.L.,564).
1 The commissioners of the Soldiers' Home may permit the governor, deputy gov-
ernor, and treasurer of the Home, who are retired officers of the Army and who
reside at the Home, to make use of ordinary supplies of fuel, light, forage, etc. , pro-
duced at the Home or purchased for it, and they may pay the treasurer, out of the
funds of the Home, a salary for his services. XX Opm. Att. Gen., 350.
The funds for the support of the Soldiers' Home are not of the class of public
moneys annually appropriated for a specific object, as for the pay of the Army, but
a special trust fund committed to and administered by the board of commissioners
for the benefit of the institution. From an early period in the history of the Home
it has been the usage for the commissioners to permit the officers of the Home (retired
officers of the Army residing at the Home) gratuitously to receive and use a reasona-
ble portion of the ordinary supplies of fuel, light, forage, milk, ice, and vegetables,
either produced at the Home or obtained for its consumption. Held, that such allow-
ance was not in contravention of law; that the articles thus issued are not of the
class of military pay and emoluments, and therefore unauthorized because not
allowed by law to retired officers, but are a reasonaple share of the supplies for the
use and benefit of the Home, the disposition of which is properly within the discre-
tion of the commissioners as trustees of the funds of the Home and as charged by
law with the "government and interests of the same." And similarly held in regard
to the amount of $1,000, allowed annually out of such funds to the treasurer of the
Home as a compensation for his special services and in consideration of his pecuniary
responsibility as a bonded officer. Dig. Opin. J. A. G., par. 2331.
Held, that a medical officer of the Army, occupying quarters at the Soldiers' Home,
was not thereby precluded from receiving commutation of quarters at New York on
being ordered to duty there as a member of a medical examining board. The quar-
ters occupied by him at the Home are not "public quarters" in the sense of par.
1480, A. R. ; he does not occupy them at the expense of the United States, and by
allowing him the commutation the Government is not put to a double expense for
his quarters. Ibid. , par. 2332.
2 The board of commissioners of the Soldiers' Home can not delegate to the gov-
ernor of the Home discretionary police authority for the preservation of good order
within its limits. XX Opin. Att. Gen., 514. They can not empower him to arrest,
890 MILITARY LAWS OF THE UNITED STATES.
FUNDS FOR SUPPORT OF THE SOLDIERS' HOME.
diS^oSS.801" 2269- For the support of the Soldiers' Home the follow-
•25^r; v! 9^596; in^ f unds are setaPartand are hereby appropriated: All
mjs. I, v1^!, p! stoppages or fines adjudged against soldiers by sentence of
6°S«e.48i8, B.S. courts-martial over and above any amount that may be
due for the reimbursement of Government or of individ-
uals; all forfeitures on account of desertion; and all mon-
eys belonging to the estates of deceased soldiers which are
or may be unclaimed for the period of three years subse-
quent to the death of such soldiers, to be repaid by the
commissioners of the institution upon the demand of the
heirs or legal representatives of the deceased.1
m^ft^of^at 227°- Hereafter the adjustment of the accounts of the
C°j1uiyi6,i892,v. Soldiers' Home under section 4818 of the Revised Stat-
27, p. IBS. utes jn tke Ofgces Of the Second Comptroller and Second
Auditor shall be limited to those originating subsequent
to March 3, 1881. Act of July 16, 1892 (27 Stat. Z., 183).
^Deductionfrom 2271. There shall be deducted from the pay of every non-
25*8*7' v1 918p1596: : commissione(l officer, musician, artificer, and private of
Mar A 1869,0.^83,' the Army of the United States the sum of twelve and a
Sec.48io,u.s. haif Cents per month, which sum so deducted shall by the
Pay Department of the Army be passed to the credit of
the commissioners of the Soldiers' Home. The commis-
sioners are also authorized to receive all donations of
money or property made by any person for the benefit
of the institution and hold the same for its sole and exclu-
detain, or deliver over to the court authorities nonmilitary persons committing crimes
less than capital, except in the cases where any person may make an arrest without
warrant or precept. Ibid.
1 Section 4818, Revised Statutes, appropriates as one of the funds for the support of
the Soldiers' Home "all forfeitures on account of desertion." Held, that this appro-
priation included the retained pay of soldiers as forfeited by desertion under the
provisions of sections 1281 and 1282, Revised Statutes, and of the act of June 16,
1890, chapter 426, section 1. The retained pay is merely a fraction of the monthly
pay of the soldier earned with the rest of his monthly pay as a part of the entire
consideration for service rendered, but of which the payment — the right to receive —
is deferred. The theory that it is not to be regarded as earned tilt the soldier's serv-
ice is concluded and he receives an honorable discharge is rebutted by the statu-
tory provisions above cited, and especially by the provision of the act of 1890, which
treats the retained pay as pay constantly accruing and as a continuing deposit for
the use of the soldier drawing interest from the end of each year in which it accrues.
The ruling of the Supreme Court in United States v. Landers (92 U. S., 77) is not
opposed to this view, but as construed by the same court in United States v. Kings-
"tey (138 U. S., 87), shows that the "forfeiture" referred to in sections 1281 and 1282,
Revised Statutes, was regarded by the court as meaning a loss of an acquired right,
and the act of 1890, passed since this ruling, has confirmed this interpretation.
Thus a soldier in deserting forfeits with the main portion of his pay the portion
which has been retained, his right to this lesser portion being as much acquired and
perfected as his right to the greater portion. Both forfeitures rest upon the same
basis, and the aggregate forfeiture of both is appropriated by the statute to the sup-
port of the Soldiers' Home. Dig. Gain. J. A. G. , Dar. 2333.
MILITARY LAWS OF THE UNITED STATES. 891
sive use. But the deduction of twelve and a half cents
per month from the pay of noncommissioned officers, mu-
sicians, artificers, and privates of regiments of volunteers
or other corps or regiments raised for a limited period or
for a temporary purpose or purposes shall only be made
with their consent.1
2272. That all funds of the Home not needed for current thf ^^f^ £*
use, and which are not now invested in United States regis- T^asur6*1 united
dper
tered bonds, shall, as soon as received, or as soon as Presen^ ^amf per
investments can be converted into money without loss, ke18ffCv
deposited in the Treasuiy of the United States to the credit
of the Home as a permanent fund, and shall draw interest interest.
at the rate of three per centum per annum, which shall be
paid quarterly to the treasurer of the Home; and the pro-
ceeds of such registered bonds, as they are paid, shall be
deposited in like manner. No part of the principal sum principal sum
so deposited shall be withdrawn for use except upon a reso- by 'resofutLiTS
lution of the board of commissioners stating the necessity- **
and approved by the Secretary of War. Sec. 8, act of March
3, 1883 (%% Stat. L.,565).
2273. That the Treasurer of the United States be, and united states
Treasurer to be
he is hereby, authorized and directed to receive and keep custodian of
J ' r funds, etc., of.
on deposit, subject to the checks or drafts of the treasurer 2JJan-7JM89i, v.
of the Soldiers' Home in the District of Columbia, all funds
which may now be under the control of the said treasurer
of the Soldiers' Home, or may hereafter be furnished him
or in any manner come into his possession for use in defray-
ing the current expenses of maintaining the said Soldiers'
Home, and, upon the request of said treasurer of the Sol-
diers' Home, there shall be transferred, from funds to his fJ^tSlLlstant
credit with the United States Treasurer, and placed to ^asurer in New
his credit with the assistant treasurer of the United States
in New York City, New York, such sums as he may require
monthly or quarterly for payments on account of "outdoor
relief " to members of the said Soldiers' Home residing at
a distance therefrom. Act of January 16, 1891 (26 Stat.
Z., 718).
2274. No officers of the Home shall borrow any money Borrowing
J J money on credit
on the credit of the Home for any purpose, nor shall any of Home prohib-
pledge of an}^ of its property or securities for any purpose 18||<^ |2Ma^3>
be valid. Sec. 9, act of March 3, 1883 (22 Stat. Z., 565).
:The act of March 16, 1896 (29 Stat. L., 60), contained the requirement that no
pay should thereafter be retained from enlisted men, but excepted therefrom the
deductions authorized to be made on account of the Soldiers' Home.
892 MILITARY LAWS OF THE UNITED STATES,
ADMISSION AND DISCHARGE OF INMATES.
comemembersbof 2275- AU soldiers of the Army of the United States, and
Home °ldiers> a^ soldiers who have been, or may hereafter be, of the
25^ri3'v8591> p' Army of the United States, and who have contributed, or
c983^s&5 ?' v8ii'mav hereafter contribute, according to section forty-eight
P'se«.'48i4, B.S. hundred and nineteen, to the support of the Soldiers' Home
hereby created, and the invalid and disabled soldiers,
whether regulars or volunteers, of the war of eighteen hun-
dred and twelve and of all subsequent wars, shall, under
the restrictions and provisions which follow, be members
of the Soldiers' Home, with all the rights annexed thereto.1
ar? heantiSld°to 2276- Tne following persons, members of the Soldiers'
dfers^Home.801 Home, according to section forty-eight hundred and four-
25Msar4f'v18^p;teen, shall be entitled to the rights and benefits herein
c98'3>^a5)v.iirp!con^erre(^' an(* no others:
43s'ec.482i, ii.s. First. Every soldier of the Army of the United States
who has served, or may serve, honestly and faithfully
twenty years in the same.
Second. Every soldier and every discharged soldier,
whether regular or volunteer, who has suffered, or may
suffer, by reason of disease or wounds incurred in the
% service and in the line of his duty, rendering him incapa-
ble of further military service, if such disability was not
occasioned by his own misconduct.
Third. The invalid and disabled soldiers, whether regu-
lar or volunteers, of the wars of eighteen hundred and
twelve and of all subsequent wars.2
are ex- 2277. The benefits of the Soldiers' Home shall not be
Mar. '3, 1851, c. extended to any soldier in the regular or volunteer service
25, s. 6, V. 9, p. 596. „ ,
sec. 4822, R.s. convicted of felony or other disgraceful or infamous crimes
of a civil nature after his admission into the service of the
United States; nor shall any one who has been a deserter,
mutineer, or habitual drunkard be received without such
evidence of subsequent service, good conduct, and reforma-
tion of character as is satisfactory to the commissioners.
1This section and 4815 recognize two classes of beneficiaries: 1. Soldiers who,
while in the service, contributed voluntarily to the support oi the Home. 2. Sol-
diers who did not contribute. Those who contributed have a right to membership
without surrendering their pensions to the Home. Under section 4820 of the Revised
Statutes, those who did not contribute may become members by making such sur-
render. Bo wen t;. U. S., 100 U. S., 508; ibid., 14 Ct. Cls., 162.
2 Held that under section 4821, Revised Statutes, invalid and disabled soldiers of
the war of the rebellion and of Indian wars were entitled to the benefits of the Sol-
diers' Home, although the disability may not have grown out of their military serv-
ice, provided it be not the result of their own misconduct as indicated in section
4822, Revised Statutes. Dig. Opin. J. A. G., 705, par. 1.
MILITARY LAWS OF THE UNITED STATES. 893
2278. Any soldier admitted into the Soldiers' Home for
disability who recovers his health, so as to become fit sec.4828, R.S.
again for military service, if under fifty years of age, shall
be discharged.1
OUTDOOR RELIEF.
2279. That the board of commissioners are authorized'
to aid persons who are entitled to admission to the Home, re^ecf- 6 Mar 3
by outdoor relief, in such manner and to such an extent1883- v.-a.p.ses.
as thev may deem proper; but such relief shall not exceed
the average cost of maintaining an inmate of the Home. g
Sec. 6, act of March 3, 1883 (82 Stat. Z., 565).
PENSIONS TO INMATES.
2280. The fact that one to whom a pension has been gi^f^and ?S-
granted for wounds or disability received in the military gJ5JJj,er of pen"
service has not contributed to the funds of the Soldiers' &£'£%% £
Home shall not preclude him from admission thereto. JSf^JfJ;!; \\^\
But all such pensioners shall surrender their pensions to 43|^c 4820^ B s
the Soldiers' Home during the time they remain therein
and voluntarily receive its benefits.2
2281. Any inmate of the Home who is receiving a pe
sion from the Government, and who has a child, wife, or
parent living, shall be entitled, by filing with the pension
agent from whom he receives his money a written direc-
tion to that effect, to have his pension, or any part of it,
paid to such child, wife, or parent. The pensions of all toPebli0plidetto
who now are or shall hereafter become inmates of the tr|^ur|r-Mar 3
Home, except such as shall be assigned as aforesaid, shall 1883) v> 22) p- 564>
be paid to the treasurer of the Home. The money thus
derived shall not become a part of the funds of the Home,
but shall be held by the treasurer in trust for the pen-
1 An inrnate is not required to remain at the Home if he wishes to leave it. The
privileges of the institution may be renounced by any act showing an intention to
renounce them — such as direct notice of such intention, or by an absenting with the
evident purpose of not returning. In February, 1864, a certain inmate was trans-
ferred from the Home to the Government Insane Hospital, and was discharged
thence as sane in June, 1864. He did not return to the Home and was not again
heard of till March, 1886, when it was ascertained that he was at the State Insane
Hospital of Pennsylvania. As he was sane when he left the Government Hospital
and did not return to the Home within a reasonable time, but remained absent nearly
twenty-two years, held that he must be deemed, in the absence of contrary evidence,
to have intended to permanently separate himself from the institution, and that he
therefore was not now an inmate or member of the same. Dig. Opin. J. A. G., par.
2329.
2 Section 4820, Revised Statutes, admits of no other reasonable construction than
that only invalid pensioners who had not contributed to the funds of the Soldiers'
Home were bound to surrender to it their pensions -while receiving its benefits.
U. S. v: Bowen, 100 U. S., 508; but see paragraph 2281, post.
894 MILITARY LAWS OF THE UNITED STATES.
sioner to whom it would otherwise have been paid, and
pension paidguch part of it as shall not sooner have been paid to him
in full on dis-
charge of pen- shall be paid to him on his discharge from the institution.
sioner from the r .
Home. The board of commissioners may from time to time pay
over to any inmate such part of his pension money as they
t think best for his interest and consistent with the discip-
line and good order of the Home, but such pensioner shall
not be entitled to demand or have the same so long as he
siOTerh "money remains an inmate of the Home. In case of the death of
feUaieheir?aid to an v Pensi°ner? any pension money due him remaining in
the hands of the treasurer shall be paid to his legal heirs,
if demand is made within three years; otherwise the same
shall escheat to the Home. Sec. h act of March 3, 1883
(%% Stat. Z., 664).
Payment of 2282. If any such pensioner isor shall become an inmate of
s£ntowife,etc!~a National Soldiers' Home, one-half of the pension drawn
30, p. 1379 in his behalf, or to which he may become entitled during
his residence therein, shall be paid by the treasurer of
that institution to such pensioner's wife, she being in neces-
sitous circumstances and a woman of good moral charac-
ter, or, if there be no wife, to the legal guardian of the
minor child or children, or the permanently dependent and
helpless child or children of such pensioner, on the order
of the Commissioner of Pensions. l Act of March 3, 1899
(30 Stat. Z., 1379).
MISCELLANEOUS PROVISIONS.
jec?toArticiSof 2283> AN persons admitted into the Soldiers' Home shall
Mar 3 1859 c ^e su^lect to the Rules and Articles of War in the same
manner as soldiers in the Army.2
**4. ^- suitable uniform shall be furnished to every
mates free of inmate of the Home, without cost to him.3 Sec. 5, act of
i883efy522MPar565: March 3, 1883 (82 'Stat. Z., 566).
iimS?dnetcUexS 2285> ^° new buildings shall be erected or new grounds
o? Kdappr°val purchased, nor shall any expenditure of more than five
1 For remainder of this enactment see paragraphs 2224 and 2230, ante.
'2 Section 4824, Revised Statutes, subjecting the inmates of the Soldiers' Home to
the Rules and Articles of War, is unconstitutional and a dead letter. These inmates
are no part of the Army, nor are they supported by the United States. They are
civilians occupying dwellings and sustained by funds held in trust for them. " The
territory of the Home being within the District of Columbia, and not having been
exempted by Congress from the operation of the criminal laws of the District, the
inmates are subject to those laws like any other residents. [Compare opinion of
Attorney-General in XX Opins., 514.] Dig. Opin., J. A. G., par. 2328.
3 The inmates of the Soldiers' Home wear the uniform of soldiers of the Army.
They are therefore within the. operation of section 1181 of the Revised Statutes
relating to the District of Columbia, which makes penal the selling of liquor to
persons wearing the uniform of soldiers. Ibid., p. 705, par. 3.
MILITARY LAWS OF THE UNITED STATES. 895
thousand dollars be made, until the action of the board usru£pli^' how
thereon shall be approved by the Secretary of War. All
supplies that can be purchased upon contract shall be so
purchased, after due notice by advertisement, of the low-
est responsible bidder. Such bidder shall give bond, with
proper security , for the performance of his contract. * Sec.
3, act of March 3, 1883 (22 Stat. Z., 565).
2286. On and after the passage of this act no license L&\!051iceI?'Ts
1 prohibited with-
tor the sale of intoxicating liquor at any place within one1",11.1 mile of So1-
J J diers' Home,
mile of the Soldiers' Home property in the District of Co- D-£b
lumbia shall be granted. Act of Felruat^y 28, 1891 (26 Stat. 26- P- 797.'
L., 797).
^Contracts for the Home should be entered into, not by the "Soldiers' Home,"
which is not an incorporated institution, but by the board of commissioners, who,
as trustees for the Home, may make contracts which will bind the United States
Dig. Opin., J. A. G., par. 2330.
Section 11 of the act of March 3, 1883 (22 Stat. L., p. 565), contains the provision
''that all laws and parts of laws relating to the Soldiers' Home now in force and not
inconsistent with this act are continued in force, and such as are inconsistent here-
with are to that extent repealed." Section 12 of the same act contained the require-
ment that " the sum of ten thousand dollars is hereby appropriated out of any money
in the Treasury not otherwise appropriated to be expended by the Secretary of the
Treasury in the employment of additional clerical force to be used in adjusting the
accounts in the Treasury Department of those funds which under the law belong to
the Soldiers' Home."
CHAJPTER XLII.
THE NATIONAL HOME FOR DISABLED VOLUNTEER
SOLDIERS.
Par.
2287-2297.
2298-2304.
2305-2309.
2310-2315.
231&-2318.
2319, 2320.
Board of Managers: GENERAL
OFFICERS.
Officers of branch homes.
Estimates and appropriations.
Purchases.
Accounts.
Establishment of branch
homes.
Par.
2321-2324. State and Territorial Homes.
2325. Admissions to the Home.
2326. Transfer of inmates.
2327. Outdoor relief.
2328-2330. Pensions to inmates.
2331. Insane patients.
2332-2339. Miscellaneous requirements.
THE BOARD OF MANAGERS: GENERAL OFFICERS.
Par.
2287. Organization of Home.
2288. Election of managers.
2289. Election of officers.
2290. Expenses of Board of Managers.
2291. Salaried officers.
2292. Bond of general treasurer.
Par.
2293. Assistant to general treasurer.
2294. Bonds of depositories.
2295. Inspection by Secretary of War.
2296. Duties of Board of Managers.
2297. Estimates to show salaries.
2287. The President, Secretary of War, Chief Justice,
abiSf Volunteer an<^ sucn other persons as have been or from time to time
c may be associated with them, shall constitute a board of
JJ; managers of an establishment for the care and relief of
MarV'31?i87541c;^e disabled volunteers of the United States Army, to be
; known by the name and style of "The National Home for
; Disabled Volunteer Soldiers," and have perpetual succes-
sion, with powers to take, hold, and convey real and per-
sonal property, establish a common seal, and to sue and
be sued in courts of law and equity; and to make by-laws,
rules, and regulations, not inconsistent with law, for carry-
ing on the business and government of the Home, and to
affix penalties thereto.
2288. Eleven managers of the National Home for Dis-
2i^&3'v1i4866io: abled Volunteers shall be elected from time to time, as
v*ai5 *p Xr7 Jan' vacancies occur, by joint resolution of Congress. They
23^1878,^51,8.1, shall all be citizens of the United States, and all residents
sec. 4826, R.S. of States which furnished organized bodies of soldiers to
896
MILITARY LAWS OF THE UNITED STATES. 897
aid in suppressing the rebellion commenced in eighteen
hundred and sixty-one; and no two of them shall be resi-
dents of the same State, and no person who gave aid or
countenance to the rebellion shall ever be eligible. The
term of office of these managers shall be for six years, and
until a successor is elected.1
2289. The fourteen managers of the National Home for Election of offi-
Disabled Volunteer Soldiers shall elect from their own of Managers0**
number a president, who shall be the chief executive offi- 21
cer of the board, two vice-presidents, and a secretary. s.
Seven of the board, of whom the president or one of the
vice-presidents shall be one, shall form a quorum for the
transaction of business at any meeting of the board.2
2290. Hereafter no member of the Board of Managers Expenses of
of the National Home for Disabled Volunteer Soldiers ag£s*
shall receive any compensation or pay for any services orv.isfp.*^.1894'
duties connected with the Home; but the traveling and
other actual expenses of a member, incurred while upon
the business of the Home, may be reimbursable to such
member. Act of August 18, 1894 (®8 Stat. L., 412).
2291. The president and secretary of the Board of Man- officers who
agers may receive a reasonable compensation for their serv- Sies.receive e*l~
ices as such officers, not exceeding four thouand dollars
and two thousand dollars, respectively, per annum. Ibid.
2292. The general treasurer3 shall give good and suffi- Bond of gen-
cient bond to the United States in a sum not less than one e™ ugliaJiaS, v.
hundred thousand dollars, as the Secretary of War may 28> p' 412'
direct, and to be approved by him, faithfully to account
for all public moneys and property which he may receive.
2293. The assistant general treasurer and assistant Assistant to
inspector-general shall hereafter, in the necessary absence urerfbond. r<
, .,., .. ,. ,, „ June 6, 1900, v.
or inability of the general treasurer, from any cause what- 31, p. 636.
ever, perform his duties and give bond to the general
treasurer for the faithful performance of such duties, but
lrChe number of managers to be elected by joint resolution of Congress was fixed
at ten by section 3 of the act of March 3, 1887 (24 Stat. L., 444), and at eleven by joint
resolution No. 21, of March 3, 1891 (26 ibid., 1117).
2 The following-named general officers were provided for in the act of appropriation
of March 3, 1901 (31 Stat. L., 1178), at the rates of compensation set opposite their
respective designations:
President of the Board of Managers $4, 000
Secretary of Board of Managers 2, 000
General treasurer '. 4, 000
Inspector-general 2, 500
Assistant to general treasurer and assistant inspector-general. . . 2, 000
Assistant inspectors-general, each 2, 000
8 The act of June 6, 1900 (31 Stat. L., 636), and prior acts of appropriation have
contained the requirement that the general treasurer shall not be a member of the
Board of Managers.
22924—08 57
mZTAKT ULWS Of THE rXTTEB -
in every respect be responsible
to the United States for any default on the
•Mpecter-fQMnL1 A**f J*me 6. 1900(31 Stat.^ 696).
ttMu Etam a»d after the passage of this act it shall be
-the duty of die Secretary of the Treasury to require from
the prarffoat and cashier of all banks used as depositories
by the treasurer of the Home a deposit of bonds sufficient
in amount to folly secure all moneys pertaining to said
Home left on deposit with any such bank. Sec. t, act of
July 9. 1*9* 94 &*- L.
8296. Hereafter, once in each fiscal year,
of War shall cause a thorough inspection to be made of
the National Home for Disabled Volunteer Soldiers, MB
to be made by an officer of the
shall report thereon
and aid report shall be transmitted to Con
at the first session thereafter/ At* of August 18,
The Board of Managers shall make an annual re-
of the National Home for Disabled
Soldiers to Congress on the first Monday of
and the board shall examine and audit
of the treasurer and visit the Home quarterly.
tsatement of expenses of the Board
of the National Home for Disabled Volunteer
Tear be submitted in the annual Book
ary or compensation paid to each of die
be submitted
of officers
section four
of theBerised
,of salary or compensation paid to each,
and the amount of allowance to each, if any, for contingent
MUJTAXY LAWS 0F
>• : v :*
i&V S&^r.r* -,-. be
and they may be appointed and
die interests of die
Board of Managers.
officer* of the National
~JL :••-•:• «i:
miliUiy service of die United
1897 & Stat, L.,
mo. The Bomzd of
4BBEB and ***pi**y^^* of the
Volunteer Soldiers
rnnce for each class, and die imte
be increased by fees, perq
the
for Disabled ~J^
ante of pay and ---
under any pretense whatever; and no
borne on more than one pay rofl or
A ;•..-:-.
« Adtvf
fine*
i
::
in*
•::::.r
£ ^ ^
"^'r-V : " " '.':^ -s:- :
oa: ilb
L . M
b-^1 ".:•-•:. ^_ . ;. :: -r.x
900 MILITARY LAWS OF THE UNITED STATES.
230L No Person shall be eligible to or hold any position
traffic. liquoror employment in the government or management of any
24Mpar54o.1887'v'Home wno i§ interested in or connected with, directly or
indirectly, any brewery, dramshop, or distillery in the
State where such Home is located. Act of March 3, 1887
(24 Stat. Z., 54.0).
TRAVELING EXPENSES.
penselo/office^: 2302- When an officer of the National Home for Disabled
28fp.g4i28' 1894< v' Volunteer Soldiers, not a member of the Board of Man-
agers thereof, travels under orders on business for the
Home he shall be allowed seven cents in lieu of all other
expenses for each mile actually traveled, distance to be
computed by the most direct through route. Act of August
18, 1894(28 Stat. Z.,
BONDS.
2303- The treasurers of the several Branch Homes shall
e$Aug is 1894, v £iye g°°d and sufficient bonds to the general treasurer in
28, p. 4i2. such sums as he may require, and to be approved by him,
faithfully to account for all public moneys and property
which they may receive. Act ofAuyust 18, 1894 (®& Stat.
Z., 41$).
MalTSbi, v. 2304t Hereafter the Board of Managers of the National
31, p. UTS. Home for Disabled Volunteer Soldiers may, in their dis-
cretion, designate and authorize an officer at each or any
of the several Branches of the National Home for Disabled
Volunteer Soldiers to perform such duties in connection
with the offices of the treasurer and quartermaster at any
such Branch as they may direct, and in the necessary
absence or inability of either of said officers from any
cause whatever to have power to act in their places and
perform all of the duties connected with the said respective
offices. All officers so designated and authorized to act as
provided hereunder shall give bond to the general treasurer
of the National Home for Disabled Volunteer Soldiers in
such amount as he may require, and to be approved by him,
faithfully to account for all public moneys and property
which they may receive. Act of March 3, 1901 (31 Stat.
Z., 1178}.
MILITARY LAWS OF THE UNITED STATES.
901
ESTIMATES AND APPROPRIATIONS.
Par.
2305. Home to be supported by appro-
priations.
2306. Estimates.
Par.
2307, 2308. The same; items of expendi-
ture.
Money; how drawn.
2305. From and after the first day of April, eighteen
hundred and seventy-five, no money shall be appropriated 5 v
or drawn for the support and maintenance of what is now 18> p- 359>
designated by law as the "National Home for Disabled
Volunteer Soldiers," except by direct and specific annual
appropriations by law.1 Act of March 3, 1875 (18 Stat. Z.,
359).
2306. That it shall be the duty of the managers of said
Home, on or before the first day of October in each year,
to furnish to the Secretary of War estimates, in detail, for
the support of said Home for the fiscal year commencing
on the first day of July thereafter, and the Secretary of
War shall annually include such estimates in his estimates
for his Department. Act of October 2, 1888 (25 Stat. Z.,
P- 548-
esti"
1886' v-
2307. That the estimates hereafter submitted for the sup- mj£*filed esti"
port of the National Home shall be made in detail, specify- 20Maiyjj 1879> v-
ing the several items of expenditure, and separating the
cost of food and other supplies in the form usually adopted
for the Army, and that this specification be made for each
soldiers' home separately. Act of March 3, 1879 (20 Stat.
L.,390).
2308. And hereafter the estimates for the support of the
Home for Disabled Volunteer Soldiers shall be submitted
by items. Act of August 4, 1886 (24 Stat. Z., 251).
2309. No moneys shall, after the first day of April, dr^nney; how
eighteen hundred and seventy-five, be drawn from the 18Mar§5g' 1876> v-
Treasury for the use of said Home, except in pursuance of
quarterly estimates, and upon quarterly requisitions by
the managers thereof upon the Secretary of War, based
1This statute repealed and replaced section 4831 of the Revised Statutes, which
provided that "for the establishment and support of the National Home for Dis-
abled Volunteer Soldiers there shall be appropriated all stoppages or fines adjudged
against such officers and soldiers by sentence of court-martial or military commission,
over and above the amounts necessary for the reimbursement of the Government or
of individuals; all forfeitures on account of desertion from such service; and all
moneys due such deceased officers and soldiers, which now are or may be unclaimed
for three years after the death of such officers and soldiers, to be repaid upon the
demand of the heirs or legal representatives of such deceased officers or soldiers.
The Board of Managers are also authorized to receive all donations of money or
property made by any person or persons for the benefit of the Home, and to hold or
dispose of the same for its sole and exclusive use."
902
MILITARY LAWS OF THE UNITED STATES.
upon such quarterly estimates, for the support of said Home
for not more than three months next succeeding such requi-
sition. And no money shall be drawn or paid upon any
such requisition while any balance heretofore drawn or
received by said Home, or for its use, from the Treasury,
under the laws now or heretofore existing, and now held
under investment or otherwise, shall remain unexpended.
Act of March 3, 1875 (18 Stat. Z., 359).
PURCHASES.
Par.
2310. Made under direction of Board of
Managers.
2311. Expenditures.
2312. Purchases of supplies.
Par.
2313. The same; medical supplies.
2314. Receipts from sales.
2315. Funds for repairs, restriction.
24, p. 539.
unTd°er bdireSion 2310. Hereafter all supplies for the National Home for
onjoardofMan-Disabled Volunteer Soldiers shall be purchased, shipped,
3oJp!y64o.1898' v' and distributed as may be directed by the Board of Man-
agers. Act of July 1, 1898 (30 Stat. Z., 640).
231L A11 of the expenditures of the said Home, including
^ne expenses of the Board of Managers, shall be made sub-
ject to the general laws governing the disbursement of
public moneys, so far as the same can be made applicable
thereto, and shall be audited by the proper accounting offi-
cers of the Treasury, under such rules and regulations as
may be prescribed by the Secretary of the Treasury. Act
of March 3, 1887 (24 Stat. Z., 639).
suppiieshase °f 2312. All purchases of supplies exceeding the sum of
2of^.r'339o!8juneone thousand dollars at any one time shall be made upon
11^1896, v. 29, p. public tender after due advertisement, and that the ex-
penditure for new buildings shall be expressly authorized
' in writing. Act of March 3, 1879 (20 Stat. Z., 390).
2313> Hereafter, upon proper application therefor, the
5SL 11, 18%, v. Medical Department of the Army is authorized to sell
, p. 445. medical and hospital supplies, at its contract prices, to the
National Home for Disabled Volunteer Soldiers. Act of
June 11, 1896 (29 Stat. Z., 445).
iesceipts from 2314. All sums received from sales of subsistence stores
28Ap^g4i28>1894'v'orother property of the National Home for Disabled Vol-
unteer Soldiers shall be taken up by the disbursing officer
under the proper current appropriation and be available
for disbursement on account of that appropriation. Act
of August 18, 1894 (28 Stat. Z., 412).
pafrsnds f°r re 2315. No part of the appropriations for repairs for any
so? pn544' 189?> v' °* ^e Branch Homes shall be used for the construction of
any new building. Act of June 4, 1897 (30 Stat. Z., 54).
m
MILITARY LAWS OF THE UNITED STATES.
903
ACCOUNTS.
Par.
4U-
2316-2318. Preparation and rendition.
2316. All amounts disbursed from the appropriation
of a Branch Home shall be disbursed and accounted for 28
monthly to the general treasurer by the treasurer of that
Branch, except such expenditures for services, stationery,
tableware, clothing, and bedding as may be required by the
Board of Managers to be legally made by the general treas-
urer; and all such stationery, tableware, clothing, and bed-
ding as may be required for each Branch Home shall be
shipped directly from the place of purchase or manufacture
to such Branch Home; and all disbursements shall be made Disbursements.
in conformity with sections thirty-six hundred and seventy-
eight and thirty -six hundred and seventy-nine, Revised
Statutes:2 Provided further, That the balance of the post-
humous fund, including the amount invested in bonds per-
taining to that fund, that may be in the hands of the
treasurer of any Branch of the Home on July first, eighteen
hundred and ninety-four, shall be transferred to the ap-
propriation for " Current expenses, eighteen hundred and
ninety-five," of that Branch Home, and thereafter all re-
.. -
ceipts on account ot the effects of deceased members shall bers to be cred-
. ited to current
be credited to the appropriation for current expenses " of expenses.
the fiscal year during which such amounts were received,
and all repayments of such amounts shall be made from
and charged to the like appropriation for the fiscal year in
which such repayments shall be made. Act of August 18,
1894(28 Stat. L.,411).
Receipts from
deceased mem-
CCOUNTS AND DISBURSEMENTS.
The accounts of the National Home for Disabled Volunteer Soldiers in their audit,
examination, and settlement are subject to the general laws governing the disburse-
ment of public moneys. A class of accounts of the Homes involving receipts or sales
of property, such as flowers, provisions to officers and others connected with the
Homes, and transportation of members of the Homes, should, however, be exempt
from the operation of these laws. These amounts may be charged, when properly
taken up day by day, on the books of the treasurer and credited on his account cur-
rent without vouchers. 3 Dig. 2nd Compt. Dec. , par. 846.
It is not practicable, in all cases, to apply the same rules in the settlement of
accounts for moneys received from "sales of certain things" at the National Home
for Disabled Volunteer Soldiers as are applied in th settlement of accounts for expend-
itures, including the expenses of the Board of Managers. When it is impracticable
to obtain vouchers, or a statement of items of receipts from sales, the certificate of
the president of the board that the abstracts of receipts are correct may be accepted.
Ibid., 848.
2 Under this provision the expenses of inspecting goods purchased for the Home
are properly chargeable as an incident of the cost of such goods, and payable out of
the appropriation for their purchase, in the absence of a specific appropriation for
inspection. 2 Compt. Dec., 522.
904 MILITARY LAWS OF THE UNITED STATER.
2317t The accounts relating to the expenditure of all
si, p. 1178. public moneys appropriated for the support and mainte-
nance of the National Home for Disabled Volunteer Sol-
diers shall be audited by the Board of Managers of said
Home in the same manner as is provided for the accounts
of the various Departments of the United States Govern-
ment, and thereupon immediately transmitted directly to
the proper accounting officers of the Treasury Depart-
ment for final audit and settlement.1 Act of March 3,
1901 (31 Stat. L., 1178).
Balances of ap- 2318. Hereafter the provisions of section thirty-six hun-
5^fS?ons>dls~dred an(* ninety and thirty-six hundred and ninety-one
25°p?543.1888' v- of the Revised Statutes of the United States shall apply
to all appropriations made for the maintenance of the
National Home for Disabled Volunteer Soldiers. Act of
October 2, 1888 (25 Stat. L., 543).
ESTABLISHMENT OF BRANCH HOMES.
2319- The Board of Managers shall have authority to
i nagd procure from time to time, at suitable places, sites for mili-
erMar.d2i,i866,c. ^aiT nomes f°r all persons serving in the Army of the
Jan.' 230873,0.' 6i| United States at any time in the war of the rebellion, not
s'^c'.478?6?B7.'s. otherwise provided for, who have been or may be disquali-
fied for procuring their own support by reason of wounds
received or sickness contracted while in the line of their
duty during the rebellion; and to have the necessary
buildings erected, having due regard to the health of loca-
tion, facility of access, and capacity to accommodate the
persons entitled to the benefits thereof.2
enactment repeals and replaces so much of the acts of March 3, 1875 (18
Stat. L., 359), March 3, 1891 (26 ibid., 984), and March 3, 1893 (27 ibid., 646), as
requires the Board of Managers to render accounts of disbursements for the several
Branches of the Home to the Secretary of War, and vests in the latter a supervision
of the accounts connected therewith.
2 Under authority conferred by separate statutes Branch Homes have been estab-
lished at the following places:
The Central Branch, at Dayton, Ohio.
The Northwestern Branch, at Milwaukee, Wis.
The Eastern Branch, at Togus, Me.
The Southern Branch, at Hampton, Va.
The Western Branch, at Leavenworth, Kans.
The Pacific Branch, at Santa Monica, Cal.
The Marion Branch, at Marion, Ind.
The Danville Branch, at Danville, 111.
The Johnson City Branch, at Johnson City, Tenn.
By the act of July 7, 1898 (30 Stat. L., 668), the "jurisdiction over the places pur-
chased for the location of the Branches of the National Home for Disabled Volunteer
Soldiers, under and by authority of an act of Congress approved July 23, 1888 (a) ,
in Grant County, State of Indiana, and upon which said Branch Home is located, and
by authority of an act of Congress approved June 4, 1897 (6), 'at the town of Dan-
a 26 Stat. L., 340. & 80 Ibid., 54.
MILITARY LAWS OF THE UNITED STATES. 905
2320. The provisions of the act entitled "An act to
authorize condemnation of land for sites of public build-
ings, and for other purposes," approved August first,
eighteen hundred and eighty-eight, shall be construed to
apply to the Board of Managers of the National Home for
Disabled Volunteer Soldiers. Act of July 19, 1897 (30
Stat. L., 105}.
STATE AND TERRITORIAL HOMES.
2321. That all States or Territories which have estab-
lished, or which shall hereafter establish, State homes f or h(£jedg /0° state
disabled soldiers and sailors of the United States who25A^|J;1888'v-
served in the war of the rebellion, or in any previous war,
who are disabled by age, disease, or otherwise, and by
reason of such disability are incapable of earning a liv-
ing, provided such disability was not incurred in service
against the United States, shall be paid for every such
disabled soldier or sailor who may be admitted and cared
for in such home at the rate of one hundred dollars per
annum. The number of such persons for whose care any
State or Territory shall receive the said payment under
this act shall be ascertained by the Board of Managers of age^NltiJSSi
the National Home for Disabled Volunteer Soldiers, under JJ}™6^ make
such regulations as it may prescribe, but the said State sec. 4826, B.S.
or Territorial homes shall be exclusively under the control
of the respective State or Territorial authorities, and the
Board of Managers shall not have nor assume any man-
agement or control of said State or Territorial homes.
The Board of Managers of the National Home shall, how-
ever, have power to have the said State or Territorial
homes inspected at such times as it may consider necessary, inspection,
and shall report the result of such inspections to Congress
in its annual report. Act of Augmt 27, 1888 (25 Stat. Z.,
450}.
2322. Payments to the States or Territories * * * ISsTJli. 2?
shall be made quarterly by the said Board of Managers 1888> v- 25> p- 45°-
for the National Home for Disabled Volunteers to the
officers of the respective States or Territories entitled,
duly authorized to receive such payments, and shall be
accounted for as are the appropriations for the support
ville, county of Vermilion, State of Illinois,' and upon which the said Branch is now
located, is hereby ceded to the respective States in which Branches are located and
relinquished by the United States, and the United States shall claim nor exercise no
jurisdiction over said places after the passage of this act: Provided, That nothing con-
tained herein shall be construed to impair the powers and rights heretofore conferred
upon the Board of Managers of the National Home for Disabled Volunteer Soldiers
in and over the said places."
900 MILITARY LAWS OF THE UNITED STATES.
of the National Home for Disabled Volunteer Soldiers.
See. 2, act of August 27, 1888 (25 Stat. Z., 450).
pension. 2323. When a soldier or sailor enters into a State home
iviftr. o, loyy, v.
so, p. 1379. for soldiers or sailors as an inmate thereof, one-half of his
pension accruing during his residence therein shall be paid
to his wife, she being a woman of good moral character
and in necessitous circumstances, or if there be no wife,
then to his child or children under sixteen years of age,
or his permanently helpless and dependent child, if any,
unless such wife and children shall also be inmates of the
same institution or of some home provided for the wives
and children of soldiers and sailors.1 Act of March 3,
1899 (30 Stat. Z., 1379).
kjjtates to pay 2324. Hereafter no State under this appropriation shall
25^975' 1889> v> De Paid a sum exceeding one-half the cost of maintenance
of each soldier or sailor by such State. 2 Act of March 2,
1889 (25 Stat. Z., ,975).
ADMISSIONS TO THE HOME.
ar^enmfeTT 2325« Hereafter the following persons only shall be en-
aieH^n°efNation'titled to the benefits of the National Home for Disabled
21^7 'v^lT'ii- Volunteer Soldiers and may be admitted thereto upon the
45ebv28i687p' ?99: 01'der of a member of the Board of Managers, namely: All
sTv^p^n61' honorably discharged officers, soldiers, and sailors who
isii v.'23,Uplyi2i;served m the regular or volunteer forces of the United
v*24, p. 4^? July States in any war in which the country has been engaged,
are disabled by disease, wounds, or otherwise, and
have no adequate means of support, and by reason of
such disability are incapable of earning their living.3 Act
of May 26, 1900 (31 Stat. Z., 217).
1 The act of March 3, 1899, contains the requirement that "in all cases the questions
of desertion, entrance into a home, necessitous circumstances, and of good moral
character shall be ascertained and determined by the Commissioner of Pensions
under such rules and regulations as he shall prescribe, and the treasurers or govern-
ors of the several soldiers' and sailors' homes shall be advised of such action from
time to time."
2 Subsequent acts of appropriation contain the requirement ''that one-half of any
sum or sums retained by State homes on account of pensions received from inmates
shall be deducted from the aid herein provided for."
3 This enactment replaces section 5 of the act of July 5, 1884 (23 Stat, L., 121) , sec-
tion 2 of the act of March 2, 1887 (24 ibid., 444), and section 5 of the act of July 23,
1888 (25 ibid., 341).
The Government is under no legal obligation to provide burial places for destitute
soldiers at a Volunteer Home. Section 4878, Revised Statutes, in providing that the
soldiers, etc., there designated "may be buried in any national cemetery free of
cost" does not require the establishment of a national . cemetery specially for the
purpose of interments at such a Home. Dig. Opin. J. A. G., par. 1770.
- The act of January 28, 1901 (31 Stat. L., 745), contained the requirement that "all
honorably discharged soldiers and sailors who served in the war of the rebellion and
the Spanish- American war, and the provisional army and the volunteer soldiers and
sailors of the war of eighteen hundred and twelve and of the Mexican war, who are
disabled by age, disease, or otherwise, and by reason of such disability are incapable
of earning a living, shall be admitted into the Home for Disabled Volunteer Soldiers,"
MILITARY LAWS OF THE UNITED STATES. 907
TRANSFER OF INMATES.
>. In the event that buildings at any Branch of the
Home shall be destroyed by fire, or rendered unfit f°i'28Au|^3'1894>v-
habitation because of pestilence or by the elements, then
and in that event the Board of Managers shall have
authority to remove the members of said Branch so
afflicted or destroyed to any other Branch not so affected;
and to do this they may use any funds appropriated for
the Home, notwithstanding they ma}- have been specifi-
cally appropriated for other purposes, to the extent that
such funds shall be necessary to effect such a transfer and
the maintenance and support thereafter of said members
so transferred, and shall report their doings therein to
the Congress and their expenditures as in other cases of
expenditures.
SEC. 2. This act shall take effect from and after its
passage. Act of August 23, 1894 (®$ Stat. Z.,
OUTDOOR RELIEF.
Outdoor relief.
2327. The managers of the National Home for Disabled Aug. '23, ISH
Volunteer Soldiers are authorized to aid persons who are
entitled to its benefits by outdoor relief in such manner
and to such extent as they may deem proper, but such re-
lief shall not exceed the average cost of maintaining an
inmate of the Home. Act of August 23, 1894(28 Stat.
Z.,#0).
PENSIONS TO INMATES.
2328. All pensions payable or to be paid under this act, Pensioners, in-
r .J r . ' mates of the Na-
to pensioners who are inmates of the National Home for
Disabled Volunteer Soldiers, shall be paid to the treasurer teer soldiers,
how paid.
or treasurers ot said Home, upon security given to the sat- sec. 2, Feb. 26,
isfaction of the managers, to be disbursed for the benefit
of the pensioners without deduction for fines or penalties
under regulations to be established by the managers of
the Home; said payment to be made by the pension agent
upon a certificate of the proper officer of the Home that
the pensioner is an inmate thereof and is still living. Any
balance of the pension which may remain at the date of
the pensioner's discharge shall be paid over to him; and
in case of his death at the Home, the same shall be paid to
the widow or children, or in default of either to his legal
representatives. l Sec. 2, act of February 26, 1881 (21 Stat.
L., 350).
JBut see act of August 7, 1882 (22 Stat. L., 322), paragraph 2329, post.
908 MILITARY LAWS OF THE UNITED STATES.
2329t ^11 pensions and arrears of pensions payable or
be paid to pensioners who are or may become inmates
. of the National Home for Disabled Volunteer Soldiers
22, p. 322. shall be paid to the treasurers of said Home, to be applied
by such treasurers as provided by law, under the rules and
regulations of said Home. Said payments shall be made
by the pension agent upon a certificate of the proper officer
of the Home that the pensioner is an inmate thereof on the
day to which said pension is drawn. The treasurers of
said Home, respectively, shall give securit}^ to the satis-
faction of the managers of said Home, for the payment
and application by them of all arrears of pension and pen-
sion moneys they may receive under the aforesaid pro-
vision. And section two of the act entitled "An act
making appropriations for the payment of invalid and
other pensions of the United States for the fiscal year end-
ing June thirtieth, eighteen hundred and eighty-two, and
for deficiencies, and for other purposes," approved Feb-
ruary twenty-sixth, eighteen hundred and eighty-one, is
hereby revived and continued in force.1 Act of August
7, 1882 (%2 Stat L.,3%2).
Payment of 2330. If any such pensioner is or shall become an inmate
Son ito wifVetc! of a National Soldiers' Home, one-half of the pension
so, pari379. v' drawn in his behalf, or to which he may become entitled
' during his residence therein, shall be paid by the treasurer
of that institution to such pensioner's wife, she being in
necessitous circumstances and a woman of good moral
character, or, if there be no wife, to the legal guardian of
the minor child or children, or the permanently dependent
and helpless child or children of such pensioner, on the
order of the Commissioner of Pensions.2 Act of March
3, 1899 (30 Stat. Z., 1379).
INSANE PATIENTS.
2331* *n addition to the persons now entitled to admis-
ab°ied6 Volunteer s*on ^° sa^ hospital, any inmate of the National Home
mmidrset°cbead" *or Disabled Volunteer Soldiers who is now or may here-
22Apg33o 1^82' v' after become insane shall, upon an order of the president
of the Board of Managers of the said National Home, be
admitted to said hospital and treated therein; and if any
inmate so admitted from said National Home is or there-
. after becomes a pensioner, and has neither wife, minor
child, nor parent dependent on him, in whole or part, for
1 For disposition of pension in case of an insane inmate, see paragraph 2331, post.
. 2 For remainder of this section, see paragraphs 2224 and 2230, ante. See, also, note
to paragraph 2282, ante.
MILITARY LAWS OF THE UNITED STATES.
909
support, his arrears of pension and his pension money
accruing during the period he shall remain in said hospital
shall be applied to his support in said hospital, and be
paid over to the proper officer of said institution for the
general uses thereof. Act of August 7, 1882 (22 Stat. L. ,
330}.
MISCELLANEOUS REQUIREMENTS.
Par.
2336. Transportation to inmates at re-
duced rates.
2337. Documents to be supplied.
2338. Franking privilege.
2339. Recession of jurisdiction.
Par.
2332. Inmates subject to Articles of War.
2333. Building for insane.
2334. Issues of ordnance.
2335. The same; State Homes.
2332. All inmates of the National Home for Disabled
Volunteer Soldiers shall be subject to the Rules and Arti-
cles of War, and in the same manner as if they were in ^'ns
the Army.1 *&%&%*.
2333. The Secretary of War is directed to turn over i^^as j
to the managers of the National Home for Disabled Vol- 21Mpar4$ -1881' v>
unteer Soldiers all the old clothing now held for issue to
the National Home. Said managers are authorized to
estimate for building and maintenance at the Central Branch
of a building or buildings for the safe and proper keeping
of the insane. Act of March 3, 1881 (2.1 Stat. L., 447).
2334. The Chief of Ordnance is authorized to issue such condemned
obsolete or condemned ordnance, gun carriages, and ord- carriages,' etc.
, , ' & ' Mar. 3, 1899, v.
nance stores as maybe needed for ornamental purposes so, p. 1073.
to the Homes for Disabled Volunteer Soldiers, the Homes
to pay for transportation and such other expenses as are
necessary. Act of March 3, 1899 (30 Stat. Z., 1073).
2335. The Secretary of War * * *
and directed, subject to such regulations as he may pre-
scribe, to deliver to any of the " National Homes for Dis-
abled Volunteer Soldiers " already established or hereafter
established and to any of the State Homes for soldiers and 25' p< 657-
sailors or either now or hereafter duly established and
maintained under State authority, such obsolete service-
able cannon, bronze or iron, suitable for firing salutes, as
may be on hand undisposed of, not exceeding two to any
one Home. Act of February 8, 1889 (25 Stat. Z., 657).
1 Section 4835, Revised Statutes, providing that the inmates of the "National Home
for Disabled Volunteer Soldiers" shall be "subject to the Rules and Articles of
War,5' held (1870) to be clearly an unconstitutional enactment, such inmates not
being, any part of the armies of the United States, but civilians. The fact that they
had once been members of the volunteer forces could not attach to them, after their
final discharges, any amenability to the military jurisdiction. Dig. Opin., J. A. G.,
par. 2344. In re Kelly 71 Fed. Rep., 545.
anthr»ri-7Arl Obsolete serv-
autnorizea iceable cannon.
910 MILITARY LAWS OF THE UNITED STATES.
2336' N°tbing in this act 1 shall be construed to prohibit
2 A? &25 V&U' s' anv common carrier from giving reduced rates to minis-
ters of religion; * * * or to inmates of the National
Homes or State Homes for Disabled Volunteers and of
Soldiers and Sailors' Orphan Homes, including those re-
turning home after discharge, under arrangements with
the Boards of Managers of said Homes. Sec. 82, act of
February 4, 1887 (25 Stat. Z., 387), as amended ly sec.
9., act of March 2, 1889 (25 Stat. Z., 855).
beDfurn™hed. to 2337- The Secretary of the Senate and the Clerk of the
28Jplyi59' 1894' v' House of Representatives shall cause to be sent to the
National Home for Disabled Volunteer Soldiers at Dayton,
Ohio, and to the Branches at Togus in Maine, Milwaukee
in Wisconsin, Hampton in Virginia, Marion in Indiana,
Leavenworth in Kansas, Santa Monica in California, and
et^tate Homes. to the Homes for the widows and orphans of soldiers and
sailors 3stablished and maintained by any State or Terri-
tory, and all Soldiers and Sailors' Homes established by the
authority of any- State or Territory receiving aid from the
United States under legislation of Congress, each, one
sageVVandmReec- COPV eacn °^ *he following documents: The session laws
sent°nly to be°^ Congress; the annual messages of the President, with
Sec-4837'K-s- accompanying documents in the abridgment thereof; the
daily Congressional Record; and the Public Printer is
hereby authorized and directed to furnish to the Secre-
tary of the Senate and the Clerk of the House of Repre-
sentatives the documents referred to in this section.2 Act
of July 26, 1894 (28 Stat. Z., 169).
be^ent?reeert° 2338< Tlie Provisions of the fifth and sixth sections of
Aug9'i83?894 tne ac^ entitled "An act establishing post routes, and for
v. 28, p. 412. ether purposes, approved March third, eighteen hundred
and seventy-seven," for the transmission of official mail
matter, be, and they are hereby, extended and made appli-
cable to all official mail matter of the National Home for
Disabled Volunteer Soldiers. Act of August 18, 1894 (^
Stat. Z., 412).
°f 2339. The jurisdiction over the places purchased and
Mar. a, Ian, v. used for the location of the Branches of the National
ol, p. 1175.
Home for Disabled Volunteer Soldiers, under and by the
authority of an act of Congress approved March twenty -
first, eighteen hundred and sixty-six, in Milwaukee
'The interstate-commerce act of February 4, 1887 (25 Stat. L., 387), as amended
by the act of March 2, 1889 (25 Stat. L. , 855) .
2 This enactment replaces corresponding provisions contained in section 4837, Rev.
Stat., and in the act of February 5, 1881 (21 Stat. L., 322).
MILITARY LAWS OF THE UNITED STATES. 911
County, State of Wisconsin, and upon which said Branch
Home is located, and by authority of an act of Congress
approved July fifth, eighteen hundred and eighty-eight,
in the county of Leavenworth, State of Kansas, and upon
which said Branch Home is located, is hereby ceded to the
respective States in which said Branches are located and
relinquished by the United States, and the United States
shall claim or exercise no jurisdiction over said places after
the passage of this act: Provided, That nothing contained
herein shall be construed to impair the powers or rights
heretofore conferred upon or exercised by the Board of
Managers of the National Home for Disabled Volunteer
Soldiers in and on said places. Act of March 3, 1901 (31
Stat. Z., 1175).
CHAPTER XLIII.
THE GOVERNMENT HOSPITAL FOR THE INSANE.
Par.
2340, 2341. Establishment and supervi-
sion.
2342. Superintendent; duties.
2343. The same, funds of inmates.
Par.
2346. Disbursement of appropriations.
2347. Pensions to inmates.
2348. Treatment of the insane of the
Army in asylums in California.
2344. 2345. Admissions, discharges.
ESTABLISHMENT AND SUPERVISION.
of BS?1§!!£S- 2340' There sha11 be in the District of Columbia a Gov-
£r the insane^1 ernmen^ Hospital f or the Insane, and its objects shall be
19? "'i8 V1^}' p' ^e mos^ humane care and enlightened curative treatment
^i'ec 4838 B s °^ *ke insane of the Army and Navy of the United States
and of the District of Columbia.
fSS^i&i; v. 2341. The supervision heretofore exercised by the Sec-
21, p. 458. retary of the Interior over the Government Hospital for
the Insane shall be continued, and the officers of said hos-
pital shall report to him as heretofore, anything in this act
to the contrary notwithstanding. Act of March 3, 1881
(21 Stat. Z., 458).
SUPERINTENDENT.
tendent superin" 2342- The ch!ef executive officer of the Hospital for the
Mar.Vissi, v. Insane snall be a superintendent, who shall be appointed
^sec.^sse K s by the Secretary of the Interior, and shall be entitled to a
salary of four thousand dollars a year, and shall give bond
for the faithful performance of his duties, in such sum
and with such securities as may be required by the Sec-
retary of the Interior. The superintendent shall be a
well-educated physician, possessing competent experience
in the care and treatment of the insane; he shall reside
on the premises, and devote his whole time to the welfare of
the institution; he shall, subject to the approval of the vis-
itors, engage and discharge all needful and useful employees
912
MILITARY LAWS OF THE UNITED STATES. 913
in the care of the insane, and all laborers on the farm, and
determine their wages and duties; he shall be the respon-
sible disbursing agent of the institution, and shall be ex-
officio secretary of the board of visitors.
2343. The superintendent of the Government Hospital ds of in*
for the Insane shall deposit in the Treasury of the United
States, in his name as agent, all funds now in his hands or
which may hereafter be intrusted to him by or for the use
of patients, which shall be kept as a separate account; and
he is hereby authorized to draw therefrom on his order,
from time to time, under such regulations as the Secretary
of the Interior may prescribe, for the use of such patients,
but not to exceed for any one patient the amount intrusted
to the superintendent on account of such patient; and he
shall give a separate bond, satisfactory to the said Secre-
retary, for the faithful performance of his duties in respect
to these funds as herein provided. Act of July 1, 1898
(30 Stat. L., 6%3).
ADMISSIONS.
2344. The superintendent, upon the order of the
tary of War, of the Secretary of the Navy, and of
Secretary of the Treasury, respectively, shall receive, andetnel5 1860 (>
keep in custody until they are cured, or removed by the:1^-^^-^;
same authority which ordered their reception, insane per- 179>
sons of the following descriptions : i8) p. 486. eiss SR5's '
First. Insane persons belonging to the Army, Navy,
Marine Corps, and Revenue-Cutter Service.
Second. Civilians employed in the Quartermaster's,
Pay, and Subsistence Departments of the Army who may
be, or may hereafter become, insane while in such employ-
ment. Act of February 9, 1900 (31 Stat. L., 7).
Third. Men who, while in the service of the United
States, in the Army, Navy, or Marine Corps, have been
admitted to the hospital, and have been thereafter dis-
charged from it on the supposition that they have recov-
ered their reason, and have, within three years after such
discharge, become again insane from causes existing at the
time of such discharge, and have no adequate means of
support.
Fourth. Indigent insane persons who have been in either
of the said services and been discharged therefrom on
account of disability arising from such insanity.
Fifth. Indigent insane persons who have become insane
22924—08 - 58
914 MILITAKY LAWS OF THE UNITED STATES.
within three years after their discharge from such service,
from causes which arose during and were produced by said
service.1
Discharge of 2345. If any person will give bond with sufficient
patients upon J
sec' 9 ibid security, to be approved by the supreme court of the Dis-
seci*866, B.S. trict of Columbia, or by any judge thereof in vacation
payable to the United States, with condition to restrain
and take care of any independent or indigent insane per-
son not charged with a breach of the peace, whether in
the hospital or not, until the insane person is restored to
sanity, such court or judge thereof may deliver such insane
person to the party giving such bond.
Disbursement 2346. All appropriations of monev by Congress for the
of appropriations , x* A ' , °
for the insane, support of the Hospital for the Insane shall be drawn from
199, s. '7, V. 10,' p! the Treasury on the requisition of the Secretary of the
sW. 4868, B.S. Interior, and shall be disbursed and accounted for in all
respects according to the laws regulating ordinary dis-
bursements of public money.2
payment of 2347. If any inmate of the Government Hospital for the
pensions to in- «r< , „ « -*.T TT •
mates. Insane so admitted 3 from said National Home is or there-
Aug. 7,- 1882, v.
22, p. 330. * after becomes a pensioner, and has neither wife, minor
child, nor parent dependent on him, in whole or in part,
for support, his arrears of pension and his pension money
accruing during the period he shall remain in said hospital
shall be applied to his support in said hospital and be paid
over to the proper officer of said institution for the gen-
eral uses thereof. Act of August 7, 1882 (22 Stat. L. , 330).
Treatment of 2348. The Secretary of War may, in his discretion, con-
insane of the ~
Army in caiifor- tract for the care, maintenance, and treatment of the insane
Mar. 3, 1901, v. of the Army, and inmates of the National Home for Dis-
abled Volunteer Soldiers on the Pacific coast at any State
asylum in California, in all cases which he is now author-
ized by law to cause to be sent to the Government Hos-
pital for the Insane in the District of Columbia. Act of
March 3, 1901 (31 Stat. Z., 1163).
1 The right to admission to the asylum has been extended by statute to include
the following classes of cases:
( 1 ) To insane convicts serving sentences of confinement imposed by United States
courts. Act of June 23, 1874 (18 Stat. L., 251) .
(2) To persons in custody charged with crime against the United States. Act of
August 7, 1882 (22 Stat. L., 202).
(3) To inmates of the several branches of the National Home for Disabled Volun-
teer Soldiers who may become insane. Act of August 7, 1882 (22 Stat. L., 302).
(4) To inmates of the Soldiers' Home who may become insane. Act of July 7,
1884 (23 Stat. L., 194). The expense of maintenance to be paid from the Soldiers'
Home fund.
2 The act of March 3, 1881 (21 Stat. L., 458), vests the supervision of the asylum
and the control over its management in the Secretary of the Interior.
3 In accordance with the act of August 7, 1882. See note 1, ante.
CHAPTER
Par.
NATIONAL PARKS.
2349-2354. National Military Parks.
2355-2382. The Chickamauga and Chat-
tanooga National Military
Park.
2378-2394. The Gettysburg National
Park.
2395-2405. The Shiloh National Military
Park.
Par.
2406-2413. The Vicksburg National Mili-
tary Park.
2414-2421. The Antietam Battlefield.
2422-2446. The Yellowstone National
Park.
NATIONAL MILITARY PARKS.
Par.
2353. Trespass, hunting, shooting, etc.
2354. Superintendent may make arrests.
2355. Ejectment from purchased lands.
Par.
2349. Use for maneuvers.
2350-2351. The same, regulations.
2352. Injuries to monuments, trees, etc.
2349. In order to obtain practical benefits of great value
to the country from the establishment of national military f°M?y i5,ui8%!v.
parks, said parks and their approaches are hereby declared 29) p< m
to be national fields for military maneuvers for the Regular
Army of the United States and the National Guard or
Militia of the States: Provided, That the said parks shall
be opened for such purposes only in the discretion of the
Secretary of War, and under such regulations as he may
prescribe.1 Act of May 16, 1896 (29 Stat. L., 120).
Section 35 of the act of February 2, 1901 (31 Stat. L., 757), contained a provision
that ' ' the Secretary of War be, and he is hereby, authorized and directed to cause
preliminary examinations and surveys to be made for the purpose of selecting four
sites with a view to the establishment of permanent camp grounds for instruction of
troops of the Regular Army and National Guard, with estimates of the cost of the
sites and their equipment with all modern appliances, and for this purpose is author-
ized to detail such officers of the Army as may be necessary to carry on the prelimi-
nary work; and the sum of ten thousand dollars is hereby appropriated for the
necessary expense of such work, to be disbursed under the direction of the Secretary
of War: Provided, That the Secretary of War shall report to Congress the result of
such examination and surveys; and no contract for said sites shall be made nor any
obligations incurred until Congress shall approve such selections and appropriate the
money therefor."
915
916 MILITARY LAWS OF THE UNITED STATES.
235°- The Secretary of War is hereby authorized, within
be in" tne limits of appropriations which may from time to time
sec. 2, md. be available for such purpose, to assemble, at his discre-
tion, in camp at such season of the year and for such period
as he may designate, at such field of military maneuvers,
such portions of the military forces of the United States
as he may think best, to receive military instruction there.
Sec. 2, ibid.
w!?tomaakeyre°g! 235L The Secretary of War is further authorized to
ulsec°2*'iwrf. make and publish regulations governing the assembling of
the National Guard or Militia of the several States upon
the maneuvering grounds, and he may detail instructors
from the Regular Army for such forces during their exer-
cises. Sec. 2, ibid.
PROTECTION OF MILITARY PARKS.
2352- Every person who willfully destroys, mutilates,
v. defaces, injures, or removes any monument, statue, marker,
29, p. 621. guidepost, or other structure, or who willfully destroys,
cuts, breaks, injures, or removes any tree, shrub, or plant
within the limits of any National Parks, shall be deemed
guilty of a misdemeanor, punishable by a fine of not less
than ten dollars nor more than one thousand dollars for
each monument, statue, marker, guidepost, or other
structure, tree, shrub, or plant destroyed, defaced, injured,
cut, or removed, or by imprisonment for not less than
fifteen days and not more than one }Tear, or by both fine
and imprisonment. Act of March 3, 1897 (29 Stat. L. , 621. )
hJnt?nga8shS&- 2353t Every person who shall trespass upon any
infecet2' 'aid National Parks for the purpose of hunting or shooting, or
who shall hunt any kind of game thereon with gun or dog,
or shall set trap or net or other device whatsoever thereon
for the purpose of hunting or catching game of any kind,
shall be guilty of a misdemeanor, punishable by a fine of
not more than one thousand dollars or by imprisonment
for not less than five days or more than thirty days, or by
both fine and imprisonment. Sec. 2, ibid.
deSntepmavnmake 23^' The superintendent or any guardian of such park
arrests. ' is authorized to arrest forthwith anv person engaged or
Sec. 3, ibid. ,
who may have been engaged in committing any misde-
meanor named in this act, and shall bring such person be-
fore any United States commissioner or judge of any dis-
trict or circuit court of the United States within either of
the districts within which the park is situated, and in the
district within which the uisdemeanor has been committed,
MILITARY LAWS OF THE UNITED STATES. 917
for the purpose of holding him to answer for such misde-
meanor, and then and there shall make complaint in due
form.1 Sec. 3, ibid.
2355. Any person to whom land lying within any p^S^^JS?
National Parks may have been leased, who refuses to give Sec- 4- md-
up possession of the same to the United States after the
termination of the said lease, and after possession has been
demanded for the United States by any Park Commissioner
or the Park Superintendent, or any person retaining pos-
session of land lying within the boundary of said park
which he or she may have sold to the United States for
park purposes, and have received payment therefor, after
possession of the same has been demanded for the United
States by any Park Commissioner or the Park Superin-
tendent, shall be deemed guilty of trespass, and the United
States may maintain an action for the recovery of the pos-
session of the premises so withheld in the courts of the
United States, according to the statutes or code of practice
of the State in which the park may be situated.2 Sec. 4, ibid.
CHICKAMAUGA AND CHATTANOOGA NATIONAL MILITARY PARK.
Par.
2356. Extent.
2357. Designation, acquisition of lands.
2358. Supervision of Secretary of War.
2359. Agreements with land owners.
2360. Commissioners, appointment.
2361. The same, duties.
2362. Location of troops.
2363. Care of park.
2364. Appropriation for preliminary
work.
2365. Reduction of area.
Par.
2366, 2367, 2368. Purchases.
2369. State monuments.
2370. P>ection of monuments, restriction.
2371. The same, construction.
2372. The same, location.
2373. Leases.
2374. Donations of land for roads.
2375. Donations of cannon, balls, etc.
2376. Injuries to monuments, trees, etc.
2377. Right of way to Chattanooga Rapid
Transit Railroad.
2356. For the purpose of preserving and suitably mark- an^/chat£no<f a
ing for historical and professional military study the
of some of the most remarkable maneuvers and most bril-
liant fighting in the war of the rebellion, and upon the
ceding of jurisdiction to the United States by the States
of Tennessee and Georgia, respectively, and the report of
1 For other statutes respecting the punishment of offenses committed in National
Military Parks see section 10, act of August 19, 1890 (26 Stat. L., 333); section 7, act
of February 11, 1895 (28 ibid., 651) ; section 7, act of December 27, 1894 (ibid., 945);
section 7, act of February 21, 1899 (30 ibid., 84).
2 For other enactments authorizing leases of land included within the limits of
National Military Parks, see the act of August 5, 1890 (26 Stat. L.. 333); August 5,
1892 (27 ibid., 376); section 3, act of December 27, 1894 (28 ibid., 597); June '4, 1897
(30 ibid., 44); and February 21, 1899 (30 ibid., 84).
918 MILITARY LAWS OF THE UNITED STATES.
the Attorney-General of the United States that the title
to the lands thus ceded is perfect, the following described
c i^?heTy\pe- kignwaJs in those States are hereby declared to be ap-
pStsCSf pa?tand Proa°hes to a°d parts of the Chickamauga and Chatta-
26Apg3ss' 189°' v' no°ga National Military Park as established by the second
section of this act, to wit: First. The Missionary Ridge
Crest road from Sherman Heights at the north end of
Missionary Ridge, in Tennessee, where the said road enters
upon the ground occupied by the Army of the Tennessee
under Major-General William T. Sherman, in the military
operations of November twenty -fourth and twenty-fifth,
eighteen hundred and sixty-three; thence along said road
through the positions occupied by the army of General
Braxton Bragg on November twenty-fifth, eighteen hun-
dred and sixty-three, and which were assaulted by the
Army of the Cumberland under Major-General George H.
Thomas on that date, to where the said road crosses the
southern boundary of the State of Tennessee, near Ross-
ville Gap, Georgia, upon the ground occupied by the
troops of Major-General Joseph Hooker, from the Army of
the Potomac, and thence in the State of Georgia to the
junction of said road with the Chattanooga and Lafayette
or State road at Rossville Gap; second, the Lafayette or
State road from Rossville, Georgia, to Lee and Gordon's
Mills, Georgia; third, the road from Lee and Gordon's
Mills, Georgia, to Crawfish Springs, Georgia; fourth, the
road from Crawfish Springs, Georgia, to the crossing of the
Chickamauga at Glass' Mills, Georgia; fifth, the Dry Valley
road from Rossville, Georgia, to the southern limits of Mc-
Far land's Gap in Missionary Ridge; sixth, the Dry Vallej7
and Crawfish Springs road from McFarland's Gap to the
intersection of the road from Crawfish Springs to Lee and
Gordon's Mills; seventh, the road from Ringold, Georgia,
to Reed's Bridge on the Chickamauga River; eighth, the
roads from the crossing of Lookout Creek across the north-
ern slope of Lookout Mountain and thence to the old Suni-
mertown Road and to the valley on the east slope of the
said mountain, and thence by the route of General Joseph
Hooker's troops to Rossville, Georgia, and each and all of
these herein described roads shall, after the passage of
this act, remain open as free public highways, and all
Rights of way. rights of way now existing through the grounds of the said
park and its approaches shall be continued. Act of Au-
gmt 19, 1890 (26 Stat. L.,
MILITARY LAWS OF THE UNITED STATES. 919
2357. Upon the ceding of jurisdiction by the legislature ofc°anTsnaand
of the State of Georgia, and the report of the Attorney- rogj®- 2 iwd
General of the United States that a perfect title has been
secured under the provisions of the act approved August
first, eighteen hundred and eighty-eight, entitled "An act
to authorize condemnation of land for sites for public
buildings, and for other purposes," the lands and roads
embraced in the area bounded as herein described, together
with the roads described in section one of this act, are
hereby declared to be a national park, to be known as the
Chickamauga and Chattanooga National Park; that is to Name. etc-
say, the area inclosed by a line beginning on the Lafay-
ette or State road, in Georgia, at a point where the bottom
of the ravine next north of the house known on the field
of Chickamauga as the Cloud House, and being about six
hundred yards north of said house, due east to the Chicka-
mauga River and due west to the intersection of the Dry
Valley road at McFarland's Gap; thence along the west side
of the Dry Valley and Crawfish Springs roads to the south
side of the road from Crawfish Springs to Lee and Gor-
don's Mills; thence along the south side of the last-named
road to Lee and Gordon's Mills; thence along the channel
of the Chickamauga River to the line forming the north-
ern boundary of the park as hereinbefore described, con-
taining seven thousand six hundred acres, more or less.
Sec. 2, ibid.
2358. The said Chickamauga and Chattanooga National peaches "to a£j
Park, and the approaches thereto, shall be under the con-
trol of the Secretary of War, and it shall be his duty,
immediately after the passage of this act, to notify the
Attorney General of the purpose of the United States to SeCl 3> md'
acquire title to the roads and lands described in the pre-
vious sections of this act under the provisions of the act of
August first, eighteen hundred and eighty-eight; and the
said Secretary, upon receiving notice from the Attorney-
General of the United States that perfect titles have been
secured to the said lands and roads, shall at once proceed
to establish and substantially mark the boundaries of the
said park. Sec. 3, ibid.
2359. The Secretary of War is hereby authorized towffhrepe™^
enter into agreements, upon such nominal terms as he^miinTtf8 to
may prescribe, with such present owners of the land as Sec- 4' md-
may desire to remain upon it, to occupy and cultivate
their present holdings, upon condition that they will pre- ^^ncy n s °f
serve the present buildings and roads, and the present
920 MILITARY LAWS OF THE UNITED STATES.
outlines of field and forest, and that they will only cut
trees or underbrush under such regulations as the Secre-
tary may prescribe, and that they will assist in caring for
and protecting all tablets, monuments, or such other arti-
ficial works as may from time to time be erected by proper
authority. Sec. 4,
COMMISSIONERS.
c°mmi8' 236°- The affairs of the Chickamauga. and Chattanooga
sec. 5, md. National Park shall, subject to the supervision and direc-
tion of the Secretary of War, be in charge of three com-
missioners, each of whom shall have actively participated
in the battle of Chickamauga or one of the battles about
Chattanooga, two to be appointed from civil life by the
Secretary of War, and a third, who shall be detailed by
the Secretary of War from among those officers of the
Army best acquainted with the details of the battles of
eommfssion ° f Chickamauga and Chattanooga, who shall act as secretary
of the commission. The said commissioners and secre-
office. tarv saan have an office in the War Department building,
and while -on actual duty shall be paid such compensation,
out of the appropriation provided in this act, as the Secre-
tary of War shall deem reasonable and just. Sec. 5, ibid.
miSon8°f c°m" 2361. It shall be the duty of the commissioners named
sec. e, md. jn tne prece(iing section, under the direction of the Secre-
tary of War, to superintend the opening of such roads as
may be necessary to the purposes of the park, and the
repair of the roads of the same, and to ascertain and defi-
nitely mark the lines of battle of all troops engaged in the
battles of Chickamauga and Chattanooga, so far as the
same shall fall within the lines of the park as defined in
the previous sections of this act, and, for the purpose of
assisting them in their duties and in ascertaining these
ofESstoiIcaieafr^nes» ^e Secretary of War shall have authority to employ,
sistarrt ^ a£ sucn compensation as he may deem reasonable and just,
to be paid out of the appropriation made by this act, some
person recognized as well informed in regard to the details
of the battles of Chickamauga and Chattanooga, and who
shall have actively participated in one of those battles, and
it shall be the duty of the Secretary of War from and after
•the passage of this act, through the commissioners, and
their assistant in historical work, and under the act
approved August first, eighteen hundred and eighty-eight,
regulating the condemnation of land for public uses, to
proceed with the preliminary work of establishing the park
MILITARY LAWS OF THE UNITED STATES. 921
and its approaches as the same are defined in this act, and
the expenses thus incurred shall be paid out of the appro-
priation provided by this act.1 Sec. 6, ibid.
2362. It shall be the duty of the commissioners, acting ul^c£o£ngof reg"
under the direction of the Secretary of War, to ascertain Sec- 7» ***•
and substantially mark the locations of the regular troops,
both infantry and artillery, within the boundaries of the
park, and to erect monuments upon those positions as
Congress may provide the necessary appropriations; and
the Secretary of War in the same way may ascertain and
mark all lines of battle within the boundaries of the park Lines of battle.
and erect plain and substantial historical tablets at such
points in the vicinity of the park and its approaches as he
may deem fitting and necessary to clearly designate posi-
tions and movements, which, although without the limits
of the park, were directly connected with the battles of
Chickamauga and Chattanooga. Sec. 7, ibid.
STATE MONUMENTS.
2363. The Secretary of War, subject to the approval of etcCare of Park
the President of the United States, shall have the power Sec- 9> md-
to make, and shall make, all needed regulations for theet^egulations'
care of the park and for the establishment and marking of
the lines of battle and other historical features of the park.
Sec. 9, ibid.
MISCELLANEOUS PROVISIONS.
2364. To enable the Secretary of War to begin to carry
out the purposes of this act, including the condemnation
and purchase of the necessary land, marking the bounda- si°n' etc-
ries of the park, opening or repairing necessary roads,
maps, and surveys, and the pay and expenses of the com-
missioners and their assistant, the sum of one hundred and
twenty-five thousand dollars, or such portion thereof as
may be necessary, is hereby appropriated out of any
moneys in the Treasury not otherwise appropriated, and
disbursements under this act shall require the approval of
the Secretary of War, and he shall make annual report of
the same to Congress.2 Sec. 11, act of August 19, 1900 (26
Stat. Z., 336).
1 All vouchers in support of disbursements under the act of August 19, 1890 (26 Stat.
L., 333), providing for the Chickamauga and Chattanooga National Military Park,
and the acts supplementary thereto, require the approval of the Secretary of War.
II Compt. Dec., 331.
2 The act of Congress of August 19, 1890, vested in the Secretary of War a simple
authority to purchase land for the purposes of the Chickamauga and Chattanooga
National Park, without direction or indication as to the terms of such purchase. Deeds
922 MILITARY LAWS OF THE UNITED STATES.
*?: 2365- The Secretary of War, upon the recommendation
26, p. 978. Of ^e Chickarnauga Park Commissioners, may confine the
limits of the park to such reduced area, within the bounds
fixed by the said act, as may be sufficient for the purposes
of the said act, and the acquisition of title by the United
States to such reduced area shall be held to be a compliance
with the terms of said act, and such title shall be procured
by the Secretary of War and under his direction in accord-
ance with the methods prescribed in sections four, five,
and six of the act approved February twenty-second,
eighteen hundred and sixty-seven, entitled "An act to
establish and protect national cemeteries," which procure-
ment of title shall- be held to be a compliance with the act
establishing the said park, and the Secretary of War shall
proceed with the establishment of the park as rapidly as
jurisdiction over the roads of the park and its approaches
and title to the separate parcels of land which compose it
may be obtained from the United States. Act of March
. 3, 1891(26 Stat. Z., 978).
SS^Sz, v. 2366- To enable the 'Secretary of War to complete the
27, p. 376. establishment of the Chickamauga and Chattanooga Na-
tional Military Park according to the terms of existing
laws, including surveys, maps, models in relief, the pur-
chase of Orchard Knob and Sherman's Earthworks, and
for observation towers and the purchase of sites for two
of them, one hundred and fifty thousand dollars. Art <>f
August 5, 1892 (27 Stat. Z., 376).
SS.TiaB, v. 2367' To enable the Secretary of War to complete the
27, p. 376. establishment of the Chickamauga and Chattanooga Na-
tional Military Park, according to the terms of existing
laws, including the construction of roads, surveys, maps,
iron gun carriages, administration building, the purchase of
land within the legal area of the park and the north point
of Lookout Mountain,1 and for widening roads, for bronze
historical tablets, repairs to bridges, one observation tower
were offered by its owners containing two conditions — first, a condition subsequent to
the effect that unless certain improvements should be made the grant should become
null and void; second, a proviso that in case the United States should at any future
time condemn other land of the grantor, he should then be paid for the same an
amount to be measured by the value, determined by appraisement, of the lands con-
veyed by the present deed, an arrangement which would be equivalent to giving him
a claim on the United States for an unliquidated amount. Held, that such conditional
conveyances could not legally be accepted by the Secretary of War, no authority
being given him by the statute to bind the Government by conditions or stipulations
in regard to the title or purchase. Dig. Opin. J. A. G., par. 2304.
*The act of July 1, 1890 (30 Stat. L., 629), contains provision for the completion of
this purchase.
MILITARY LAWS OF THE UNITED STATES. 923
on Orchard Knob;1 * * * in all, one hundred thousand
dollars. Act of March 3, 1893 (27 Stat. Z., 376).
2368. To * * * complete the establishment of the Sl.'ISisw, v.
park, * * * including road construction, * * *28, P.403.
foundations for State monuments, the purchase of the .
north end of Missionary Ridge, and monument sites in
the vicinity of Glass's Mill, * * in all, seventy-five
thousand dollars. Act of August 18, 1894 (28 Stat. L. , 4O3).
2369, To * * * complete the establishment of the
* * * park, * * * including road work, memorial 28> p-
gateway and designs therefor, * * land the purchase
of which has heretofore been authorized by law, sites for
monuments in Lookout Valle}T, not to exceed three hundred
dollars in all; in all, seventy -five thousand dollars.2 Act
of March 2. 1895 (28 Stat. Z., 94$).
STATE MONUMENTS.
2370. It shall be lawful for the authorities of any State hav-
ing troops engaged either at Chattanooga or Chickamauga,
and for the officers and directors of the Chickamauga Me- et^ug 19 1890 8
morial Association, a corporation chartered under the laws8^-26^-333-
of Georgia, to enter upon the lands and approaches of the
Chickamauga and Chattanooga National Park for the pur-
pose of ascertaining and marking the lines of battle of
troops engaged therein: Provided, That before any such
lines are permanently designated the position of the lines
and the proposed methods of marking them by monuments,
tablets, or otherwise shall be submitted to the Secretary secretary of
of War, and shall first receive the written approval of the prove lines, etc.
Secretary, which approval shall be based upon formal
written reports, which must be made to him in each case
by the commissioners of the park. Sec. 8, act of August
19, 1890 (26 Stat. Z.,
2371. The said Board of Commissioners heretofore monr^entsn °f
appointed pursuant to the statute creating said park is18^^-^ ^ 2-
hereby empowered to authorize the boards or representa-
tives of the several States building monuments upon said
1The term ' ' or other public building of any kind whatever, ' ' used in sec. 355, Rev. Sts. ,
held to include the "observation towers," for the erection of which in the Chicka-
mauga and Chattanooga National Park appropriations were made in the acts of August
5, 1892, and March 3, 1893. Consent by the legislature of the State to the purchase of
the land by the United States is therefore requisite before the appropriation can legally
be expended. Dig. Opin. J. A. G., par. 681.
2 The act of February 26, 1896 (29 Stat. L., 21), makes the unexpended balance of
the appropriation for dedication ceremonies available for the current work of establish-
ment,
924 MILITARY LAWS OF THE UNITED STATES.
battlefield to take and use, under such rules and regula-
tions an(* uPon suc^ terms as said National Commission
author- mav direct, such stone and other material, including sand
and gravel, as may be necessary to construct the founda-
tion for any such monuments, and which may be found
within the territory of said National Park, and the roads
and highways leading thereto.1 Joi,nt resolution No. 8,
October 2, 1893 (28 Stat. Z., 12).
2372. No monuments or memorials shall be erected upon
, 18%, v. an7 lands of the park, or remain upon any lands which
29, p. 21. mav j^ purchased for the park, except upon ground actu-
ally occupied in the course of the battle by troops of the
State which the proposed monuments are intended to com-
memorate, except upon those sections of the park set apart
for memorials to troops which were engaged in the cam-
paigns, but operated outside of the legal limits of the
park; and the regulations of the commissioners of the
park, as approved by the Secretary of War, promulgated
December fourteenth, eighteen hundred and ninety-five,
are hereby affirmed.1 Act of February 26, 1896 (29 Stat.
Z., 21).
st!0tea m°onnS- 2373- State memorials shall be placed on brigade lines
mjune4 189? v °^ Battle under the direction of the Park Commission.
' '
so, p. 43. £ct Ofjune ^ 1897 (30 Stat. L. , 43).
LEASES.
~~e. „, *J92, v. 2374> The Secretary of War may lease the lands of the
27, p. 376. park at his discretion, either to former owners or other
persons, for agricultural purposes, the proceeds to be ap-
plied by the Secretary of War to the repairs of roads and
the care of the park; and from this appropriation the
Secretary of War is authorized to pay the disbursing
officer of the War Department the sum of five hundred
dollars for disbursing this and former appropriations for
said park.2 Act of August 6, 1892 (27 Stat. Z., 376).
DONATIONS.
land^or'JSds °f 2375- The Secretary of War is hereby authorized to
27ipai599>. 1893' v' accept on behalf of the United States donations of land
for road purposes. Act of March 3, 1893 (27 Stat. Z.,
599).
canSon!1^8 °f 2376- Tne Secretary of War and the Secretary of the
27Ap*376 1892< v' Navy are hereby authorized to deliver to the Commis-
1 See also paragraph 2363, ante.
2 See also section 4, act of August 19, 1890 (26 Stat. L., 333), paragraph 2359. ante.
MILITARY LAWS OF THE UNITED STATES. 925
sioners of the Chickamauga and Chattanooga National
Military Park, at the park, such number of condemned
cannon and cannon balls as their judgment may approve,
for the purpose of their work of indication and marking
location on the battlefields of Chickmauga, Missionary
Ridge, and Lookout Mountain. Act of August 5, 1892
(27 Stat. L.,376}.
i *
INJURIES TO MONUMENTS, TREES, ETC.
2377. If any person shall willfully destroy, mutilate, ^f1^^^*
deface, injure, or remove any monument, column, statues, *°c monument8'
memorial structure, or work of art that shall be erected or Sec- 10j ibid-
placed upon the grounds of the park by lawful authority,
or shall willfully destroy or remove any fence, railing, in-
closure, or other work for the protection or ornament of
said park, or any portion thereof, or shall willfully destroy,
cut, hack, bark, breakdown, or otherwise injure any tree,
bush, or shrubbery that may be growing upon said park,
or shall cut down or fell or remove any timber, battle relic,
tree or trees growing or being upon such park, except by
permission of the Secretary of War, or shall willfully re-
move or destroy any breast-works, earth-works, walls, or
other defenses or shelter, or any part thereof, constructed
by the armies formerly engaged in the battles on the lands
or approaches to the park, any person so offending and
found guilty thereof, before any justice of the peace of the
county in which the offense may be committed, shall for
each and every such offense forfeit and pay a fine, in the
discretion of the justice, according to the aggravation of
the offense, of not less than five nor more than fifty dol-
lars, one-half to the use of the park and the other half to
the informer, to be enforced and recovered, before such
justice, in like manner as debts of like nature are now by
law recoverable in the several counties where the offense
may be committed.1 Sec. 10, ibid.
RIGHT OF WAY TO CHATTANOOGA RAPID TRANSIT COMPANY.
2378. The Secretary of War is herebv authorized, at his Right of way.
j . . J J May 7, 1898, v .
discretion, and upon the tavorable recommendation of the^o. p. "399.
Chickamauga and Chattanooga National Park Commission,
to grant a right of way to the Chattanooga Rapid Transit
Company to lay a single track across the Dry Valley road
at such point or place thereon as said commission may
^ee for general provisions on this subject the act of March 3. 1897 (29 Stat. L..
621), par. 2352, ante.
926 MILITARY LAWS OF THE UNITED STATES.
determine upon; and also, upon like recommendation of
said commission, may grant such other concessions as may
be necessary to permit the said Chattanooga Rapid Transit
Company to extend its lines to the Chickamauga and Chat-
tanooga National Park: Provided, That such grant or
grants shall only become or be operative on the condition
that the track and tracks and roadbed of said company,
and the right of way for any and all extensions of its road
to said park from the point of crossing said Dry Valley
road shall first be definitely fixed and located upon a line
or lines which shall be satisfactory to and approved by
said commission; and no part of said line or lines of road,
after being so located, established, built, or constructed,
shall be changed, moved, or extended without the consent
in writing of said commission thereto being first had and
obtained, and upon the further condition that an agree-
ment satisfactory to said commission and approved by it
shall be entered into on the part of said company for the
proper maintenance of the crossing of said Dry Valley
road, and at all times keeping the same .in proper repair
and condition. Act of May 7, 1898 (30 Stat. Z., 399).
THE GETTYSBURG NATIONAL PARK.
Par.
2379. Acquisition of lands.
2380. Designation.
2381. Commissioners, compensation, du-
ties.
2382. Acquisition of additional lands.
Par.
2387. Roads.
2388. Specimens of arms, uniforms, etc.
2389. Condemnation of lands.
2390. Leases.
2391. 2392, 2393. Erection of monuments.
2383. The same, condemnation. Lincoln's Gettysburg address.
2384. Appropriations, disbursements. j 2394. Injuries to monuments, trees, etc.
2385. Monuments and tablets, avenues, j 2395. Regulations.
2386. Continuing surveys.
tioGn^typSarUkgNa" 2379' The Secretary of War is hereby authorized to
landfromSattie- receive from the Gettysburg Battlefield Memorial Asso-
ilociatio?orial ciati°n> a corporation chartered by the State of Pennsyl-
28Fpb66i' 1895> v' vania? a deed of conveyance to the United States of all the
lands belonging to said association, embracing about eight
hundred acres, more or less, and being a considerable part
of the battlefield of Gettysburg, together with all rights
of way over avenues through said lands acquired by said
association, and all improvements made by it in and upon
the same. . Upon the due execution and delivery to the
Secretary of War of such deed of conveyance the Secre-
tary of War is authorized to pay to the said Battlefield
Memorial Association the sum of two thousand dollars, or
MILITARY LAWS OF THE UNITED STATES.
927
so much thereof as may be necessary to discharge the
debts of said association, the amount of such debts to be
verified by the officers thereof, and the sum of two thou-
sand dollars is hereby appropriated out of any money in
the Treasury not otherwise appropriated to meet and
defray such charges. Act of F&bruary 11, 1895 (28 Stat.
Z., 651).
2380. As soon as the lands aforesaid shall be conveyed
to the United States the Secretary of War shall take pos-
session of the same, and such other lands on the battlefield
as the United States have acquired, or shall hereafter
acquire, by purchase or condemnation proceedings; and
the lands aforesaid shall be designated and known as the
" Gettysburg National Park."1 Sec. 2, iUd.
Designation.
Cft>r» 9 fl/vyW
COMMISSIONERS.
compensation.
Duty-
2381. The Gettysburg national park shall, subject to the
supervision and direction of the Secretary of War, be in
charge of the commissioners heretofore appointed by the
Secretary of War for the location and acquisition of lands
at Gettysburg, and their successors; the said commission-
ers shall have their office at Gettysburg, and while on duty
shall be paid such compensation out of the appropriation
provided in this act as the Secretary of War shall deem
reasonable and just. And it shall be the duty of the said
commissioners, under the direction of the Secretary of
War, to superintend the opening of such additional roads
as may be necessary for the purposes of the park and for
the improvement of the avenues heretofore laid out therein,
and to properly mark the boundaries of the said park, and
to ascertain and definitely mark the lines of battle of all
troops engaged in the battle of Gettysburg, so far as the
same shall fall within the limits of the park.2 Sec. 3, ibid.
2382. The Secretary of War is hereby authorized and
directed to acquire, at such times and in such manner as Sec- 4> md-
1 Where certain land, part of the battlefield of Gettysburg, was in danger of being
so cut up and altered by the construction of an electric railroad as to cause the oblit-
eration of important tactical positions occupied by the different commands engaged
in the battle, advised that the Attorney-General be requested to have initiated the
proper proceedings for the condemnation of the land so that the United States may
acquire the fee, and for an injunction restraining the railroad company from con-
structing or operating its road upon the land pending the condemnation proceedings.
Dig. Opin. J. A. G., par. 1561.
2 Any act of Congress which plainly and directly tends to enhance the respect and
love of the citizen for the institutions of his country and to quicken and strengthen
his motives to defend them, and which is germane to and intimately connected with
and appropriate to the exercise of some one or all of the powers "granted bv Con-
gress, must be valid, and the proposed use in this case comes within such description.
U. S. v. Gettysburg Electric Railway Co., 160 U. S., 668.
&"
928 MILITARY LAWS OF THE UNITED STATES.
he may deem best calculated to serve the public interest,
such lands in the vicinity of Gettysburg, Pennsylvania,
not exceeding in area the parcels shown on the map pre-
pared by Major-General Daniel E. Sickles, United States
Army, and now on file in the office of the Secretary of War,
which were occupied by the infantry, cavalry, and artillery
on the first, second, and third days of July, eighteen hun-
dred and sixty-three, and such other adjacent lands as he
may deem necessary to preserve the important topograph-
ical features of the battlefield: Provided, That nothing con-
tained in this act shall be deemed and held to prejudice
the rights acquired by any State or by any military organi-
zation to the ground on which its monuments or markers
are placed, nor the right of way to the same. Sec. 4, ibid.
commissioners 2383. For the purpose of acquiring the lands designated
to acquire lands . * ^ . .
designated. and described in the foregoing section not already acquired
and owned by the United States, and such other adjacent
land as may be deemed necessary by the Secretary of War
for the preservation and marking of the lines of battle of
the Union and Confederate armies at Gettysburg, the Sec-
retary of War is authorized to employ the services of the
commissioners heretofore appointed by him for the loca-
tion, who shall proceed, in conformity with his instruc-
tions and subject in all things to his approval, to acquire
condemnation such lands by purchase, or by condemnation proceedings,
prAug. visss, v. to be taken by the Attorney-General in behalf of the
United States, in any case in which it shall be ascertained
that the same can not be purchased at prices deemed
reasonable and just by the said commissioners and approved
by the Secretary of War. And such condemnation pro-
ceedings may be taken pursuant to the act of Congress
approved August first, eighteen hundred and eighty-eight,
regulating the condemnation of land for public uses, or the
joint resolution authorizing the purchase or condemnation
of land in the' vicinity of Gettysburg, Pennsylvania, ap-
proved June fifth, eight hundred and ninety-four. Sec. 5,
iUd.
Appropriation 2384. To enable the Secretary of War to carry out the
for expenses, etc. J
sec. 9, iMd. purposes of this act, including the purchase or condem-
nation of the land described in sections four and five of
this act, opening, improving, and repairing necessary
roads and avenues, providing surveys and maps,
seventy -five thousand dollars, or so much thereof as may
be necessary, is hereby appropriated, out of any money
in the Treasury not otherwise appropriated; and all dis-
MILITARY LAWS OF THE UNITED STATES. 929
bursements made under this act shall require the approval
of the Secretary of War, who shall make annual report of
the same to Congress. Sec. 9, ibid.
2385. For the purpose of preserving the lines of battle ^ Ablets11 at
at Gettysburg, Pennsylvania, and for properly marking Gettysburg, Pa.
with tablets the positions occupied by the various com-
mands of the armies of the Potomac and of Northern Vir-
ginia on that field, and for opening and improving avenues Marn3,ei893,cV.
along the positions occupied by troops upon those lines, 2
and for fencing the same, and for determining the leading
tactical positions of batteries, regiments, brigades, divi-
sions, corps, and other organizations with" reference to the
study and correct understanding of the battle, and to mark
the same with suitable tablets, each bearing a brief histor-
ical legend, compiled without praise and without censure,
the sum of twenty-five thousand dollars, to be expended
under the direction of the Secretary of War.1 Act of
March 3, 1893 (27 Stat. Z., 599).
2386. For continuing the work of surveying, locating, Su?v0eyst,ientcuing
and preserving the lines of battle at Gettysburg, Pennsyl-
vania, and for purchasing, opening, constructing, and im-
proving avenues along the portions occupied by the vari-
ous commands of the armies of the Potomac and Northern
Virginia on that field, and for fencing the same; and for
the purchase, at private sale or by condemnation, of such
parcels of land as the Secretary of War may deem neces-
sary for the sites of tablets, and for the construction of
the said avenues; for determining the leading tactical posi-
tions and property marking the same with tablets of bat-
teries, regiments, brigades, divisions, corps, and other
organizations with reference to the study and correct un-
derstanding of the battle, each tablet bearing a brief his-
torical legend, compiled without praise and without cen-
sure; fifty thousand dollars, to be expended under the
direction of the Secretary of war.2 Act of August 18,
189 % (28 Stat. Z., 405).
1 This statute was held to be constitutional and within the power of Congress by
the decision of the Supreme Court of the United States in the case of the United
States r. The Gettysburg Electric Railway Company (160 U. S., 668) . But see U. S.
v. Tract of Land, etc. (70 Fed. Rep., 940) .
2 The appropriations for the Gettysburg National Park, made in the acts of August
18, 1894, and February 11, 1895, to the extent that they provide for objects common
to both, are cumulative, while each is available for certain objects not provided for
in the other. (2 Compt. Dec., 59. )
The act of June 9, 1880 (21 Stat. L., 170), contained the folio wing provision: "That
the sum of fifty thousand dollars, or so much thereof as may be necessary, is hereby
appropriated, out of any money in the Treasury not otherwise appropriated, to com-
plete the survey of the Gettysburg battlefield; also, to provide for the compilation
22924—08 59
930 MILITARY LAWS OF THE UNITED STATES.
ROADS.
?u°nei6,ei8C96(v 2387- The Secretary of War is hereby authorized in
29, p. 384. kis discretion to improve and maintain the public roads
within the limits of the national park at Gettysburg, Penn-
sylvania, over which jurisdiction has been or may hereafter
be ceded to the United States: Provided, That nothing
contained in this act shall be deemed and held to prejudice
the rights acquired by any State or by any military organ-
ization to the ground on which its monuments or markers
are placed nor the right of way to the same. Act of June
10, 1896 (W Stat. Z.,
SPECIMENS OF ARMS, ETC.
used 2388« The Secretary of War is hereby authorized and
to be directed to deliver to the Gettysburg Battlefield Memo-
892>v'ria^ Association, at Gettysburg, Pennsylvania, specimens
of the arms, equipments, projectiles, uniforms, and other
material of war used by the armies in that battle (so far
as may be practicable), for the purpose of exhibiting and
preserving them for historical purposes in the museum at
the house used by Major-General Meade for headquarters,
now owned by the said association, or at such other place
as the directors of the association may cleem proper. And
that the transportation to Gettysburg be furnished by the
Quartermaster's Department of the United States from
the appropriation for the transportation of army supplies.
Act of July 87, 1892 (27 Stat. Z., 276).
CONDEMNATION OF LANDS.
andcqcondemnan 2389- The Secretary of War is authorized to acquire by
U jtinVaResS' so, purchase (or by condemnation), pursuant to the act of
2?np m 1894' v' August one, eighteen hundred and eighty -eight,1 such
lands, or interests in lands, upon or in the vicinity of said
battlefield, as, in the judgment of the Secretary of War,
may be necessaiy for the complete execution of the act of
of all available data used in locating troops on the engineer maps of that battle; also,
to provide diagrams showing the changing movements and positions during the en-
gagement; the whole to be done by or under the direction of Mr. John B. Bachelder,
author of the position plates of the Government maps of that battle, under the direc-
tion of the Secretary of War: Provided, That no part of said sum shall be disbursed
by the Secretary of War except for work actually performed or for materials fur-
nished for the objects heretofore named ; and that all the maps, data, and materials
prepared for, or used for, the work contemplated by this act shall be the property of
the Government, to be deposited in the Department of War: And provided further,
That the sum hereby appropriated shall be in full satisfaction for all work done and
all material collected by the said John B. Bachelder."
1 See also paragraph 2383, ante.
MILITARY LAWS OF THE UNITED STATES. 931
March three, eighteen hundred and ninety-three:1 Pro-
vided, That no obligation or liability upon the part of the
Government shall be incurred under this resolution nor
any expenditure made except out of appropriations already
made and to be made during the present session of Con-
gress.2 Joint Resolution No. 30, June 5, 1894. (®$ Stat.
Z., 684).
LEASES.
2390. The Secretary of War may lease the lands of the Jjjjfj- 1897 v
park, at his discretion, either to former owners or other 30> p> 44-
persons, for agricultural purposes, the proceeds to be
applied by the Secretary of War, through the proper dis-
bursing officer, to the maintenance of the park. Act of
June 4, 1897 (30 Stat. Z., 44).
ERECTION OF MONUMENTS.
2391. For the erection of monuments or memorial tablets
for the proper marking of the position of each of the com- 24Mpar5335 1887' v'
mands of the Regular Army engaged at Gettysburg, fifteen
thousand dollars, to be expended under the direction of
the Secretary of War. Act of March 3, 1887 (24 Stat. L. ,
535).
2392. The appropriation of fifteen thousand dollars, Set6 t^Iss, v.
made by the act approved March third, eighteen hundred 25> p- 538>
and eighty -seven, for the erection of monuments or me-
morial tablets for the proper marking of the position of
each of the commands of the Regular Army engaged at
Gettysburg, be, and the same is hereby, made available
for the purchase of land upon which to erect the monu-
ments and tablets. Act of October 2, 1888 (25 Stat. Z.,
538).
2393. The Secretary of War is hereby authorized and COnta?nzfngtaLin-
directed to cause to be made a suitable bronze tablet, con-™ln's address-
taining on it the address delivered by Abraham Lincoln, 8 *" e2g- j^f95' s-
President of the United States, at Gettysburg, on the nine-
teenth day of November, eighteen hundred and sixty -three,
on the occasion of the dedication of the national cemetery
at that place, and such tablet, having on it besides the
address a medallion likeness of President Lincoln, shall be Medallion,
erected on the most suitable site within the limits of said
1 The requirement of the act of June 4, 1897, which authorizes the Secretary of
War to lease the lands of the Gettysburg National Military Park for agricultural pur-
poses that ' ' the proceeds are to be applied * * * to the maintenance of the
park," relates only to the proceeds of leases so made, and not to other proceeds of
the lands. IV Compt. Dec., 343,
932 MILITARY LAWS OF THE UNITED STATES.
park, which said address was in the following words, to
wit:
' 4 Four score and seven years ago our fathers brought
forth on this continent a new nation, conceived in liberty
and dedicated to the proposition that all men are created
equal.
"Now we are engaged in a great civil war, testing
whether that nation, or any nation so conceived and so
dedicated, can long endure. We are met on a great battle-
field of that war. We have come to dedicate a portion of
that field as a final resting place for those who here gave
their lives that that nation might live. It is altogether
fitting and proper that we should do this.
" But, in a larger sense, we can not dedicate, we can not
consecrate, we can not hallow this ground. The brave
men, living and dead, who struggled here have consecrated
it far above our poor power to add or detract. The world
will little note, nor long remember, what we say here;
but it can never forget what they did here. It is for us,
the living, rather to be dedicated here to the unfinished
work which they who fought here have thus far so nobly
advanced. It is rather for us to be here dedicated to the
great task remaining before us; that from these honored
dead we take increased devotion to that cause for which
they gave the last full measure of devotion; that we here
highly resolve that these dead shall not have died in vain ;
that this nation, under God, shall have a new birth of free-
dom, and that government of the people, by the people, for
the people, shall not perish from the earth."
And the sum of five thousand dollars, or so much thereof
as may be necessary, is hereby appropriated, out of any
money in the Treasury not otherwise appropriated, to pay
the cost of said tablet and medallion and pedestal. Sec.
8, act of February 11, 1895 (28 Stat. Z., 651).
INJURIES TO MONUMENTS, TABLETS, ETC'.
stronyainygf°cof- 2394t ^ anv Person sna^ destroy, mutilate, deface,
UIFeb en 1895- injure? or remove, except by permission of the Secretary
s. 7, v. 28, 'p. 65i. Of War, any column, statue, memorial structure, or work
of art that shall be erected or placed upon the grounds of
the park by lawful authority, or shall destroy or remove
any fence, railing, inclosure, or other work for the pro-
tection or ornament of said park or any portion thereof,
or shall destroy, cut, hack, bark, break down, or other-
wise injure any tree, bush, or shrubbery that may be
MILITARY LAWS OF THE UNITED STATES. 933
growing upon said park, or shall cut down or fell or remove
any timber, battle relic, tree or trees, growing or being
upon said park, or hunt within the limits of the park, or
shall remove or destroy any breastworks, earthworks,
walls, or other defenses or shelter or any part thereof
constructed by the armies formerly engaged in the battles
on the land or approaches to the park, or shall violate any
regulation made and published by the Secretary of War
for the government of visitors within the limits of said
park, any person so offending and found guilty thereof,
before any justice of the peace of the county in which the
offense may be committed, shall, for each and every such
offense, forfeit and pay a fine, in the discretion of the jus-
tice, according to the aggravation of the offense, of not
less than five .nor more than five hundred dollars, one
half for the use of the park and the other half to the
informer, to be enforced and recovered before such justice
in like manner as debts of like nature are now by law
recoverable in the county where the offense may be com-
mitted.1 Sec. ?', act of Feliruary 11, 1895 (28 Stat. L.,
651).
REGULATIONS.
2395. It shall be the duty of the Secretary of War toet(?egulations
establish and enforce proper regulations for the custodv, feb- 'oilf 1f^6;
A J ' s. 6, V. 28, p. 651.
preservation, and care of the monuments now erected or
which may be hereafter erected within the limits of the
said national military park; and such rules shall provide
for convenient access by visitors to all such monuments
within the park, and the ground included therein, on such
days and within such hours as may be designated and
authorized by the Secretary of War. Sec. 6, act of Feb-
ruary 11, 1895 (28 Stat. Z., 661).
THE SHILOH NATIONAL MILITARY PARK.
Par. Par.
2396. Extent, designation. 2401. Marking lines of battle. ^
2397. Acquisition of lands. | 2402. Injuries to monuments, trees, etc.
2398. Commissioners, appointment, com- I 2403. Leases.
pensation. I 2404. Appropriation.
2399. The same, duties.
2400, 2401. The same, location of office.
2405, 2406. Condemned cannon, balls, etc.
2396. In order that the armies of the Southwest which swioh National
served in the civil war, like their comrades of the Eastern teMfched. &1
armies at Gettysburg and those of the Central West at i, v628, p'. 597. ' s
1 For other statutes imposing penalties for offenses committed in national military
parks, see act of March 3, 1897 (29 Stat. L., 621), paragraph 2352, ante.
934 MILITARY LAWS OF THE UNITED STATES.
Chickamauga, may have the history of one of their memo-
rable battles preserved on the ground where they fought,
the battlefield of Shiloh, in the State of Tennessee, is
hereby declared to be a national military park, whenever
title to the same shall have been acquired by the United
States and the usual jurisdiction over the lands and roads
of the same shall have been granted to the United States
by the State of Tennessee; that is to sa}7, the area inclosed
by the following lines, or so much thereof as the commis-
sioners of the park may deem necessary, to wit: Begin-
ning at low-water mark on the north bank of Snake Creek
where it empties into the Tennessee River; thence west-
wardly in a straight line to the point where the river road
to Crumps Landing, Tennessee, crosses Snake Creek;
thence along the channel of Snake Creek to Owl Creek}
thence along the channel of Owl Creek to the crossing of
the road to Purdy, Tennessee; thence southwardly in a
straight line to the intersection of an east and west line
drawn from the point where the road to Hamburg, Ten-
nessee, crosses Lick Creek, near the mouth of the latter;
thence eastward along the said east and west line to the
point where the Hamburg road crosses Lick Creek; thence
along the channel of Lick Creek to the Tennessee River;
thence along low-water mark of the Tennessee River to
the point of beginning, containing three thousand acres,
more or less, and the area thus inclosed shall be known as
the Shiloh National Military Park: Provided, That the
boundaries of the land authorized to be acquired may be
changed by the said commissioners. Sec. 7, act of Decem-
ber 27, 1894 (28 Stat. L., 597).
wlr ctoe acquit 2397t ^ne establishment of the Shiloh National Military
land, etc. Park shall be carried forward under the control and direc-
Sec. 2, ibid.
tion of the Secretary of War who, upon the passage of
this act, shall proceed to acquire title to the same either
under the act approved August first, eighteen hundred
and eighty-eight, entitled "An act to authorize the con-
demnation of land for sites of public buildings, and for
other purposes," or under the act approved February
twenty -seventh, eighteen hundred and sixty-seven, entitled
" An act to establish and protect national cemeteries," as
he may select, and as title is procured to any portion of
the lands and roads within the legal boundaries of the
park he may proceed with the establishment of the park
upon such portions as may thus be acquired. Sec. 2, ibid.
MILITARY LAWS OF THE UNITED STATES. 935
COMMISSIONERS.
2398. The affairs of the Shiloh National Military Park
shall, subject to the supervision and direction of the Sec-
retary of War, be in charge of three commissioners, to be
appointed by the Secretary of War, each of whom shall
have served at the time of the battle in one of the armies
engaged therein, one of whom shall have served in the
Army of the Tennessee, commanded by General U. S.
Grant, who shall be chairman of the commission; one in
the Army of the Ohio, commanded by General D. C. Buell;
and one in the Army of the Mississippi, commanded by
General A. S. Johnston. The said commissioners shall et?ompensation
have an office in the War Department building, and while
on actual duty shall be paid such compensation out of the
appropriations provided by this act as the Secretary of
War shall deem reasonable and just; and, for the purpose
of assisting them in their duties and in ascertaining the
lines of battle of all troops engaged and the history of
their movements in the battle, the Secretary of War shall
have authority to employ, at such compensation as he may
deem reasonable, to be paid out of the appropriations
made by this act, some person recognized as well informed
concerning the history of the several armies engaged at
Shiloh, and who shall also act as secretary of the commis-
sion. Sec. 4, ibid.
2399. It shall be the duty of the commission named in J^ of com-
the preceding section, under the direction of the Secretary Sec> 6> ***•
of War, to open or repair such roads as may be necessary
to the purposes of the park, and to ascertain and mark
with historical tablets or otherwise, as the Secretary of
War may determine, all lines of battle of the troops en-
gaged in the battle of Shiloh and other historical points
of interest pertaining to the battle within the park or its
vicinity, and the said commission in establishing this mili-
tary park shall also have authority, under the direction of
the Secretary of War, to employ such labor and services
and to obtain such supplies and material as may be nee- •
essary to the establishment of the said park under such
regulations as he may consider best for the interest of the
Government, and the Secretary of War shall make and
enforce all needed regulations for the care of the park.
Sec. 5, ibid.
2400. The commissioners appointed under the act of 0^**imitation
Congress approved December twenty-seventh, eighteen £fn(furchases of
936 MILITARY LAWS OF THE UNITED STATES.
28Mi?r9425.1895' v' hundred and ninety-four, to have charge, under the Secre-
189?> v' tery of War> of the affairs of the Shiloh National Military
Park, shall have their office at Pittsburg Landing, Tennes-
see, or at such other point convenient to the battlefield of
Shiloh, Tennessee, as the Secretary of War may direct;
and the limit of cost of all the lands to be embraced in the
said park is hereby fixed at not to exceed fifty thousand
dollars.1 Act of March 8, 1895 (28 Stat. Z., 945).
MARKING LINES OF BATTLE, MONUMENTS, ETC.
tcines 2401- Jt sha11 be lawful for a-ny State that had troops
59T4' engaged in the battle of Shiloh to enter upon the lands of
the Shiloh National Military Park for the purpose of ascer-
taining and marking the lines of battle of its troops en-
gaged therein- Provided, That before any such lines' are
permanently designated the position of the lines and the
proposed methods of marking them by monuments, tablets,
or otherwise shall be submitted to and approved by the Sec-
retary of War, and all such lines, designs, and inscrip-
tions for the same shall receive the written approval of
the Secretary, which approval shall be based upon formal
written reports, which must be made to him in each case
onl8 forbidden" ^.Y ^e commissioners of the park: Provided, That no dis-
crimination shall be made against any State as to the
manner of designating lines, but any grant made to any
State by the Secretary of War may be used by any other
State. Sec. 6, act of December 27 , 1894 (28 Stat. L.,597).
INJURIES TO MONUMENTS, TABLETS, ETC.
stroy!iigy£onu- 2402> ^ anJ Person shall, except by permission of the
msecS)7e<fed Secretary of War, destroy, mutilate, deface, injure, or
remove any monument, column, statues, memorial struc-
tures, or work of art that shall be erected or placed upon
the grounds of the park by lawful authority, or shall
destroy or remove any fence, railing, inclosure, or other
\v ork for the protection or ornament of said park, or any
portion thereof, or shall destroy, cut, hack, bark, break
down, or otherwise injure any tree, bush, or shrubbery that
may be growing upon said park, or shall cut down or fell or
remove any timber, battle relic, tree or trees growing or
being upon said park, or hunt within the limits of the park,
or shall remove or destroy any breastworks, earthworks,
lfrhe act of June 4, 1897 (30 Stat. L., 43), contained the requirement that "the
limit of cost of all the lands to be embraced in the said park is hereby increased to
not to exceed fifty thousand dollars."
MILITARY LAWS OF THE UNITED STATES.
walls, or other defenses or shelter on any part thereof con-
structed by the armies formerly engaged in the battles on
the lands or approaches to the park, any person so offend-
ing and found guilty thereof, before any justice of the
peace of the county in which the offense may be committed,
or any court of competent jurisdiction, shall for each and
every such offense forfeit and pay a fine, in the discretion
of the justice, according to the aggravation of the offense,
of not less than five nor more than fifty dollars, one-half
for the use of the park and the other half to the informer,
to be enforced and recovered before such justice in like
manner as debts of like nature are now by law recoverable
in the several counties where the offense may be com-
mitted.1 Sec. 7, ibid.
937
LEASES.
2403. The Secretary of War is hereby authorized to Leases, eto.,au-
enter into agreements wherebj^ he may lease, upon such
terms as he may prescribe, with such present owners or
tenants of the lands as may desire to remain upon it, to
occupy and cultivate their present holdings upon condition
that they will preserve the present buildings and roads and
the present outlines of field and forest, and that they only
will cut trees or underbrush under such regulations as the
Secretary may prescribe, and that they will assist in caring
for and protecting all tablets, monuments, or such other
artificial works as may from time to time be erected by
proper authority. Sec. 3, ibid.
MISCELLANEOUS REQUIREMENTS.
2404. To enable the Secretary of War to begin to carry
out the purpose of this act, including the condemnation or
purchase of the necessary land, marking the boundaries of
the park, opening or repairing necessary roads, restoring
the field to its condition at the time of the battle, maps
and surveys, and the pay and expenses of the commission-
ers and their assistant, the sum of seventy-five thousand
dollars, or such portion thereof as may be necessary, is
hereby appropriated, out of any moneys in the Treasury
not otherwise appropriated; and disbursements under this Disbursements.
act shall require the approval of the Secretary of War,
and he shall make annual report of the same to Congress.
Sec. £, ibid.
1 For general statutes in respect to offenses in national military parks, see the act of
March 3,' 1897 (39 Stat. L., 621), paragraphs 2352 to 2355 ante.
938 MILITARY LAWS OF THE UNITED STATES.
can°nonaen^bands 2405- The Secretary of War and the Secretary of the
t°j^eneiini896dv Navy are hereby authorized to deliver to the Commissioners
29, p. 442.' Of the ghiloh National Military Park, at the park, upon
the requisition of said Commissioners, such condemned
cannon, cannon balls, and shells as may be needed for the
purposes of the park. Act of June 11, 1896 (29 Stat.
L., 442).
The same. 2406. The Secretary of War and the Secretary of the
29, p. 442.' ' Navy are hereby authorized to deliver to the Commissioners
of the Shiloh National Military Park, at the park, upon
the requisition of the Commissioners, such condemned
cannon, cannon balls, and shells as may be needed for the
purposes of the park. Act of February 26, 1898 (29 Stat.
THE VICKSBURG NATIONAL MILITARY PARK.
Par. Par.
2407. Establishment, extent. 2411. The same, duties.
2408. Acquisition of lands. 2412. State monuments.
2409. Leases. 2413. Injuries to monuments, trees, etc.
2410. Commissioners' office; salary. j 2414. Construction of park.
^Boundaries of 2407. In order to commemorate the campaign and siege
3oFeb84i' 18"' v' anc^ Defense of Vicksburg, and to preserve the history of
the battles and operations of the siege and defense on the
ground where they were fougfft and were carried on, the
battlefield of Vicksburg, in the State of Mississippi, is
hereby declared to be a national military park whenever
the title to the same shall have been acquired by the
United States and the usual jurisdiction over the lands
and roads of the same shall have been granted to the
United States by the State of Mississippi; that is to say,
the area inclosed by the following lines, or so much
thereof as the commissioners of the park may deem nec-
essary, to wit: -Beginning near«the point where the grave-
yard road, now known as the City Cemetery road, crosses
the line of the Confederate earthworks; thence north
about eighty rods; thence in an easterly direction about
one hundred and twenty rods; thence in a southerly direc-
tion, and keeping as far from the line of the Confederate
earthworks as the purposes of the park may require and
as the park commission, to be hereinafter named, may
determine, but not distant from the nearest point on said
line of Confederate earthworks more than one hundred
and sixty rods at ai>y part, to a point about forty rods
south and from eighty to one hundred and sixty rods east
MILITARY LAWS OF THE UNITED STATES. 939
of Fort Garrott, also known as the "Square Fort;" thence
in a westerly direction to a point in the rear of said Fort
Garrott; thence in a northerly direction across the line of
the Confederate earthworks and to a point about two hun-
dred feet in the rear of the said line of Confederate earth-
works; thence in a general northerly direction, and at an
approximate distance of about two hundred feet in the
rear of the line of Confederate earthworks as the confor-
mation of the ground may require, to the place of begin-
ning. This to constitute the main body of the park. In
addition thereto a strip of land about two hundred and
sixty-four feet in width, along and including the remain-
ing parts of the Confederate earthworks, namely, from the
north part of said main body of the park to and including
Fort Hill or Fort Nogales on the high hill overlooking
the national cemetery, and from the south part of said
main body of the park to the edge of the bluff at the river
below the city of Vicksburg; and also in addition thereto
a strip of land about two hundred and sixty -four feet in
width, as near as may be, along and including the Federal
lines opposed to the Confederate lines herein and above
named and not included in the main body of the park;
and in further addition thereto such points of interest as
the commission may deem necessary for the purposes of
the park and the Secretary of War may approve; the
whole containing about one thousand two hundred acres,
and costing not to exceed forty thousand dollars.1 Act of
February 21, 1899 (30 Stat. Z., 841).
2408. The establishment of the Vicksburg national mili- lands.^"011 *
tary park shall be carried forward under the control and See> ?I lbld'
direction of the Secretary of War; and the Secretary of
War shall, upon the passage of this act, proceed to acquire
title to the same by voluntary conveyance or under the
act approved August first, eighteen hundred and eighty-
eight, entitled "An act to authorize the condemnation of
land for sites of public buildings, and for other purposes,"
or under act approved February twenty-second, eighteen
hundred and sixty -seven, entitled "An act to establish and
protect national cemeteries," as he may elect or deem
act of February 9, 1900 (31 Stat. L., 12), contains the requirement that "the
sum of five thousand dollars, or so much of said amount as may be necessary, may
be expended, with the approval of the Secretary of War, in addition to the amount
authorized by section one of the act approved February twenty-first, eighteen hun-
dred and ninety-nine, in the purchase of lands to be used as a part of the site of said
park." This clause operates to increase the limit of expenditure for land from
$40,000 to $45,000. By the act of June 6, 1900 (31 ibid., 625), the additional amount
of $6,000 was appropriated for the purchase of lands.
940 MILITARY LAWS OF THE UNITED STATES.
practicable; and when title is procured to all of the lands
and roads within the boundaries of the proposed park, as
described in section one of this act, he may proceed with
the establishment of the park, and he shall detail an officer
of the Engineer Corps of the Army to assist the commis-
sioners in establishing the park. Sec. #, ibid.
2409. The Secretary of War is hereby authorized to
enter into agreements of leasing, upon such terms as he
may prescribe, with such occupants or tenants of the lands
as may desire to remain upon it, to occupy and cultivate
their present holdings upon condition that they will pre-
serve the present buildings and roads and the present out-
lines of field and forest, and that they will only cut trees
or underbrush under such regulations as the Secretary of
War may prescribe, and that they will assist in caring for
and protecting all tablets, monuments, or such other arti-
ficial works as may from time to time be erected by proper
authority : Provided, That the United States shall at all times
have and retain full right, power, and authority to take
possession of any and all parts or portions of said prem-
ises and to remove and expel therefrom any such occupant,
tenant, or other person or persons found thereon whenever
the Secretary of War or the commissioners shall deem it
proper or necessary; and such right, power, and authority
shall be reserved in express terms in all leases and agree-
ments giving or granting such occupant or tenant the right
to remain in possession as herein contemplated; and there-
upon said occupant or tenant or other persons who may be
required to vacate said premises shall each and all at once
surrender and deliver up the possession thereof. Sec. 3,
ibid.
commission- 2410. The affairs of the Vicksburg national military
ers' office; salary. .
sec.4,t&»d. park shall, subject to the supervision and direction of the
Secretary of War, be in charge of three commissioners, to
be appointed by the Secretary of War, each of whom shall
have served at the time of the siege and defense in one of
the armies engaged therein, two of whom shall have served
in the army commanded by General Grant and one in the
army commanded by General Pemberton. The commis-
sioners shall elect one of their number chairman; they
shall also elect, subject to the approval of the Secretary of
War, a secretary, who shall also be historian, and who
shall possess the requisite qualifications of a commissioner,
and they and the secretary shall have an office in the city
of Vicksburg, Mississippi, or on the grounds of the park,
MILITARY LAWS OF THE UNITED STATES. 941
and be paid such compensation as the Secretary of Wai-
shall deem reasonable and just. Sec. 4, ibid.
2411. It shall be the duty of the commissioners named in gjjjj1!8^
the preceding section, under the direction of the Secretary
of War, to restore the forts and the lines of fortification,
the parallels and the approaches of the two armies, or so
much thereof as may be necessary to the purposes of this
park; to open and construct and to repair such roads as
may be necessary to said purposes, and to ascertain and
mark with historical tablets, or otherwise, as the Secretary
of War may determine, the lines of battle of the troops
engaged in the assaults, and the lines held by the troops
during the siege and defense of Vicksburg, the headquar-
ters of General Grant and of General Pemberton, and
other historical points of interest pertaining to the siege
and defense of Vicksburg within the park or its vicinity;
and the said commissioners in establishing this military
park shall also have authority under the direction of the
Secretary of War to do all things necessary to the pur-
poses of the park, and for its establishment under such
regulations as he may consider best for the interest of the
Government, and the Secretary of War shall make and en-
force all needful regulations for the care of the park.1
Sec. 5, ibid.
2412. It shall be lawful for any State that had troops en- state monu-
• • i f -\r- me nts, erection.
gaged m the siege and defense of Vicksburg to enter upon sec.6,*id.
the lands of the Vicksburg National Military Park for the
purpose of ascertaining and marking the lines of battle of
its troops engaged therein: Provided, That before any
such lines are permanently designated the position of the
lines and the proposed methods of marking them by monu-
ments, tablets, or otherwise shall be submitted to and ap-
proved by the Secretary of War, and all such lines, designs,
and inscriptions for the same shall first receive the written
approval of the Secretary of War, which approval shall
be based upon formal written reports which must be made
to him in each case by the commissioners of the park; and
no monument, tablet, or other designating indication shall
be erected or placed within said park or vicinit}^ without
1 The employment of persons to aid the Vicksburg Military Park Commission in
preparing abstracts of title to and conveyances of lands to be purchased for park pur-
poses is not the employment of "attorneys or counsel," within the meaning of sec-
tion 189, Revised Statutes, which provides that "no head of a department shall
employ attorneys or counsel." The employment of such persons is authorized, and
compensation for such services may be made from the appropriation made in section
8 of the act of February 21, 1899, 30 Stat. L., 841. 6 Comp. Dec., 133.
942 MILITARY LAWS OF THE UNITED STATES.
such written authority of the Secretary of War: Provided,
That no discrimination shall be made against any State as
to the manner of designating lines, but any grant made to
any State by the Secretary of War may be used by any
other State. The provisions of this section shall also apply
to organizations and persons; and as the Vicksburg National
Cemetery is on ground partly occupied by Federal lines
during the siege of Vicksburg, the provisions of this sec-
tion, as far as may be practicable, shall apply to monu-
ments or tablets designating such lines within the limits of
that cemetery. Sec. 6, ibid.
menteryetem°nu" 2413> ^ an^ Person shall, except by permission of the
sec.'7,iWd. Secretary of War, destroy, mutilate, deface, injure, or
remove any monument, column, statue, memorial struc-
ture, tablet, or work of art that shall be erected or placed
upon the grounds of the park by lawful authority, or shall
destroy or remove any fence, railing, inclosure, or other
work intended for the protection or ornamentation of said
park, or any portion thereof, or shall destroy, cut, hack,
bark, break down, or otherwise injure any tree, bush, or
shrub that may be growing upon said park, or shall cut
down or fell or remove any timber, battle relic, tree, or
trees growing or being upon said park, or hunt within the
limits of the park, or shall remove or destroy any breast-
works, earthworks, walls, or other defenses or shelter on any
part thereof constructed by the armies formerly engaged in
the battles, on the lands or approaches to the park, any
person so offending and found guilty thereof, before any
United States commissioner or court, justice of the peace
of the county in which the offense may be committed, or
any court of competent jurisdiction, shall for each and
every such offense forfeit and pay a fine in the discretion
of the said commissioner or court of the United States or
justice of the peace, according to the aggravation of the
offense, of not less than five nor more than five hundred
dollars, one-half for the use of the park and the other half
to the informant, to be enforced and recovered before
such United States commissioner or court or justice of the
peace or other court in like manner as debts of like nature
are now by law recoverable in the several counties where
the offense may be committed. Sec. 7, ibid.
construction of 2414. To enable the Secretary of War to begin to carry
pasec. s,itid. out the purpose of this act, including the condemnation or
purchase of the necessary land, marking the boundaries
of the park, opening or repairing necessary roads, restor-
MILITARY LAWS OF THE UNITED STATES. 943
ing the field to its condition at the time of the battle, maps
and surveys, material, labor, clerical and all other neces-
sary assistants, and the pay and expenses of the commis-
sioners and their secretary and assistants, the sum of
sixty-five thousand dollars, or such portion thereof as may
be necessary, is hereby appropriated, out of any moneys
in the Treasury not otherwise appropriated, and disburse-
ments under this act shall require the approval of the Sec-
retary of War, and he shall make annual report of the
same to Congress. Sec. 8, ibid.
THE ANTIETAM BATTLEFIELD.
Par.
Par.
2419. The same, South Mountain, Har-i
pers Ferry, etc.
2420. Condemned cannon, balls, etc.
2421. Condemned gun carriages.
2422. Superintendent.
2415. Locating lines of battle.
2416. Tablets.
2417. Marking lines.
2418. Appropriation.
2415. For the purpose of surveying, locating, and pre-
serving the lines of battle of the Army of the Potomac and ^,^30 1890 v
of the Army of Northern Virginia at Antietam, and for26^-401-
marking the same, and for locating and marking the posi-
tion of each of the forty-three different commands of the
Regular Army engaged in the battle of Antietam, and for
the purchase of sites for tablets for the marking of such
positions, fifteen thousand dollars. And all lands acquired
by the United States for this purpose, whether by pur-
chase, gift, or otherwise, shall be under the care and super-
vision of the Secretary of War. Act of August 30, 1890
(26 Stat. L., 401).
2416. For the purpose of surveying, locating, and pre-
serving the lines of battle of the Army of the Potomac and 27- P-
of the Army of Northern Virginia at Antietam, and for
marking the same, and for locating and marking the posi-
tions of each of the forty-three different commands of the
Regular Army engaged in the battle of Antietam, and for
the purchase of sites for tablets for the marking of such
positions, as follows: For cost of one hundred and fourteen
tablets, transporting and setting up of same, purchase of
one hundred and fourteen sites for tablets, salaries of
board, including office rent, hire of vehicles, mileage, and
for condemnation of land and acquiring title for same, in
all, sixteen thousand three hundred and ten dollars: Pro-
vided, That in acquiring land for the sites for tablets on
the battlefield, the Secretary of War is authorized to pro-
944 MILITABY LAWS OF THE UNITED STATES.
ceed in accordance with act approved March third, eighteen
hundred and ninety -one, making appropriations for sundry
civil expenses under title "Chickamauga and Chattanooga
National Park." Act of August 5, 1892 (27 Stat. Z., 377).
^Marking lines, 2417. For continuing the work of surveying, locating,
27^599 1893> v' anc* Preserying lines °f battle of the Army of the Potomac
and of the Army of Northern Virginia at Antietam, and
for locating and marking the positions of the forty-three
different commands of the Regular Army engaged in the
battle of Antietam, and for purchase of sites for tablets
for marking the same, and for the purchase of roadway to
tablets, as follows: For the purchase of fifty additional
tablets, and transporting and setting up same; purchase
, of fifty additional sjtes for tablets; salaries of board,
including office rent, hire of vehicles, and mileage, and
for the condemnation of the land and acquiring title of the
Roadway. same, and for the purchase of land for roadway from a
point on the Sharpsburg and Hagerstown turnpike to
a point on the Sharpsburg and Boons boro turnpike (said
land is known as the Bloody Lane or Sunken Road), and
for repairing and fencing in said roadway, fifteen thou-
sand dollars.
workntinuing 2418- For completing the work of locating, preserving,
28fpar95o.1895' v' an(^ mai>king the lines of battle at Antietam, and for prop-
erly marking with tablets, each, bearing a brief historical
legend compiled without praise and without censure, the
position occupied by the several commands of the Armies
of the Potomac and of Northern Virginia on that field, and
for opening and improving avenues along the positions
occupied by troops upon those lines, and for fencing the
same, nine thousand four hundred and twenty-one dollars,
to be immediately available, and to be expended under the
direction of the Secretary of War. Act of March 2, 1895
(28 Stat. Z., 950).
formari3nge?o" 2419> The Secretary of War is authorized to supply at
sitManr% 18Q, _ Antietam such number of cannon and cannon balls as his
Mar. o, loyo, v.
27, p. 599. judgment may approve, and which can be spared, for the
purpose of marking the positions of the different com-
mands engaged in the battle of Antietam. Act of March
3, 1893 (27 Stat. L.,599).
Ma? C2ai89a5gev 2420t The Secretary of War be, and he is hereby, au-
28, p. 950. thorized to supply fifty unserviceable wooden field-gun
carriages, of the type used during the civil war, for the
purpose of marking the positions occupied by batteries of
artillery on the said field. Act of March 2, 1895 (28 Stat.
Z., 950).
MILITARY LAWS OF THE UNITED STATES.
945
2421. For completing the work of locating, preserving, tefn,utHa?P°e?s
and marking the positions of troops and lines of battle of
the Union and Confederate armies at Antietam, and
closely related battles of Harpers Ferr}^ South Mountain, 29> P- 443>
Cramptons Gap, and Shepherdstown, the said lines and
positions to be marked with cast-iron tablets, each bearing
a brief historical legend compiled without praise and with-
out censure : for improvement of roads owned by the United
States at Antietam; for monuments of cannon balls and
bases therefor to mark the localities where six general
officers were killed ; for completing the observatory towers ;
for guideposts; for preparing and publishing maps indicat-
ing the movements and positions of troops engaged in the
battles and in the Antietam campaign; and for services
and materials incidental to the foregoing, seventeen thou-
sand dollars, to be expended under the direction of the
Secretary of War. Act of June 11, 1896 (29 Stat. L. , 443).
2422. For pay of superintendent of Antietam battlefield, ^superintend-
said superintendent to perform his duties under the direc- 31Jun|3o' 1900) v*
tion of the Quartermaster's Department and to be selected
and appointed by the Secretary of War, at his discretion,
the person selected and appointed to this position to be an
honorably discharged Union soldier, one thousand two
hundred dollars. Act of June 6, 1900 (31 Stat. Z., 630).
THE YELLOWSTONE NATIONAL PARK.
Par.
2423-2436. Establishment and jurisdic-
tion.
2437-2441. Protection of birds and ani-
mals,
2442,2443. Leases.
Par.
2444. Employees.
2445. Details of troops.
2446. Improvements.
2447. Employment of troops.
ESTABLISHMENT AND JURISDICTION.
Par.
2423. Establishment.
2424. Control of Secretary of the In-
terior.
2425. Preservation of fish and game.
2426, 2427. Jurisdiction.
2428. The same; laws of Wyoming.
2429. United States commissioner.
Par.
2430. Duties, trials.
2431. Process in felony cases.
2432. Fees.
2433. Deputy marshals.
2434. Jail.
2435. Costs.
2436. Existing laws continued.
2423. The tract of land in the Territories of Montana and
Wyoming, lying near the head waters of the Yellowstone $
River, and described as follows, to wit, commencing at the
junction ot Gardiner's River with the Yellowstone River,
and running east to the meridian passing ten miles to the
22924—08 60
946 MILITARY LAWS OF THE UNITED STATF*.
ca-tward of the most eastern point of Yellowstone Lake:
thence south along said meridian to the parallel of latitude
passing ten miles south of the most southern point of Yel-
lowstone Lake: the nee west along said parallel to the
meridian passing- fifteen miles west of the most western
point of Madison Lake; thence north along said meridian
to the latitude of the junction of the Yellowstone and Gar-
diner's Rivers: thence east to the place of beginning, is
reserved and withdrawn from settlement, occupancy, or
sale under the laws of the United States, and dedicated
and set apart as a public park or pleasuring ground for the
benefit and enjoyment of the people: and all persons who
locate, or settle upon, or occupy any part of the land thus
set apart as a public park, except as provided in the fol-
lowing section , shall be considered trespassers and removed
therefrom.1
SUPERVISION.
or °to 2424. Such public park shall be under the exclusive con-
icxof '"the tr°l °* the Secretary of the Interior, whose duty it shall be,
P*sec *> ibid ^ soon as practicable, to make and publish such regu-
se*. 2475.R.S. latjons as he may deem necessary or proper for the care
and management of the same. Such regulations shall pro-
vide for the preservation, from injury or spoliation, of all
timber, mineral deposits, natural curiosities, or wonders,
within the park, and their retention in their natural con-
dition.
preservation of 2425. He shall provide against the wanton destruction
fish and game. r
sec. 2475. B.S. Of the fish and game found within the park, and against
their capture or destruction for the purpose of merchan-
Removai ofdise or profit. He shall also cause all persons trespassing
upon the same to be removed therefrom, and generally is
authorized to take all such measures as may be nec< -
or proper to full}* carry out the objects and purposes of
this section.2
JURISDICTION.
UOTleof jluSted 2426- The Yellowstone National Park, as its boundaries
StMay7 1894 v now are defined, °r as they may be hereafter defined or
28, p. 73. extended, shall be under the sole and exclusive jurisdiction
of the United States; and that all the laws applicable to
1 The boundaries of the Yellowstone Park are described in the act of March 1, 1872
(17 Stat. L., 32), above cited. Under the authority conferred by the act of March 3,
1891 (26 Stat. L., 1095): the President on March 30, 1891, set apart as a forest reserva-
tion a tract of land adjoining the Yellowstone Park, the limits of which are described
in proclamation No. 17 (26 Stat. L., 1565). On September 10, 1891, by proclamation
No. 6 (27 Stat. L., 11), a second tract of land was similarly reserved.
'See, also, section 4, act of May 7, 1894 (28 Stat. L., 73), par. 2437, post.
MILITARY LAWS OF THE UNITED STATES. 947
places under the sole and exclusive jurisdiction of the
United States shall have force and effect in said park:1 I
. That nothing in this act shall be construed to
forbid the service in the park of any civil or criminal proc- state process.
— <J any court having jurisdiction in the States of
Idaho. Mont-ana, and Wyoming. All fugitives from jus-
tice taking refuge in said park shall be subject t«> tin- same
laws as refugees from justice found in the State of Wyo-
ming. :. 1894 '.- a
2427. Said park, for all the purposes of thi> art.
constitute a part of the United Stetoe nidicial district
Wyoming, and the district and circuit courts of the United
States in and for said district shall have jurisdiction of all
offenses committed within said park. > ' ,'d.
2428. If any offense shall be committed in said Yellow-
stone National Park, which offense is not prohibited or the
-••
punishment is not specially 'provided for by any law of
the United States or by any regulation of the Secretary of
the Interior, the offender shall be subject to the same pun-
ishment as the laws of the State of Wyoming in force at
the time of the commission of the ohYnse may provide for
alike offence in the said Stat« •: and no subsequent repeal
of any such law of tl Si Vyorning shall affect any
• ution for said offense committed within said park.
UNITED STATES COMMISSIONER.
2429. The United States circuit court in said district
31 ay t , jLcftjO, s. o,
shall appoint a commissioner, who shall reside in the park, v- ^ P- 73-
who shall have jurisdiction to hear and act upon all com-
plaints made, of any and all violations of the law. or of
the rules and regulations made by the Secretary of the
Interior for the government of the park, and for the pro-
n of the animals, birds, and tish and objects of interest
'Section 2 of the act of July 10, 1890 (26 Stat L., 222) , by which the State of Wyo-
ming was admitted to the Union, contained the following clause: " That Nothing in
this act_ contained shall repeal or affect any act of Congress relating to the Yellow-
stone National Park, or the reservation of the park as now defined, or as may be
hereafter defined or extended, or the power of the United States over it; and noth-
ing contained in this act shall interfere with the right and ownership of the United
States in said park and reservation as it now is or may hereafter be defined or extended
by Law; but exclusive legislation, in all cases whatsoever, shall be exercised by the
United States, which shall have exclusive control and jurisdiction over the same": but
nothing in this proviso contained shall be construed to prevent the service within
said park of civil and criminal process lawfully issued by the authority of said State:
and the said State shall not be entitled TO select indemnity school lands for the six-
teenth and thirty-sixth sections that may be in said park reservation as the same is now
defined or may be hereafter denned."
This statute operated to reserve to the United States exclusive jurisdiction and con-
trol over the park as then defined or as it might be thereafter defined or extended by
enactment of Congress. By the act of May 7. 1894 (28 Stat. L.. 73 . paragraph I
post, Congress assumed the jurisdiction authorized by the act of July 10, 1890.
948
MILITARY LAWS OF THE UNITED STATES.
Duties.
Trials.
Appeals.
Sec. 5, ibid.
therein, and for other purposes authorized by this act.
Such commissioner shall have power, upon sworn informa-
tion, to issue process in the name of the United States for
the arrest of any person charged with the commission of
any misdemeanor, or charged with the violation of the
rules and regulations, or with the violation of any provi-
sion of this act prescribed for the government of said
park, and for the protection of the animals, birds, and fish
in the said park, and to try the person £p charged, and, if
found guilt}7, to impose the punishment and adjudge the
forfeiture prescribed. Section 5, act of Mcuy 7, 1894
(28 Stat. Z., 73).
2430. In all cases of conviction an appeal shall lie from
the judgment of said commissioner to the United States
district court for the district of Wyoming, said appeal to
be governed by the laws of the State of Wyoming provid-
ing for appeals in cases of misdemeanor from justices of
the peace to the district court of said State; but the United
States circuit court in said district may prescribe rules of
procedure and practice for said commissioner in the trial
of cases and for appeal to said United States district court.
Ibid.
2431. Said commissioner shall also have power to issue
process as hereinbefore provided for the arrest of any
person charged with the commission of any felony within
the park, and to summarily hear the evidence introduced,
and, if he shall determine that probable cause is shown for
holding the person so charged for trial, shall cause such
person to be safely conveyed to a secure place for confine-
ment, within the jurisdiction of the United States district
court in said State of W^yoming, and shall certify a tran-
script of the record of his proceedings and the testimony
in the case to the said court, which court shall have juris-
diction of the case: Provided, That the said commissioner
shall grant bail in all cases bailable under the laws of the
United States or of said State. All process issued by the
commissioner shall be directed to the marshal of the United
States for the district of Wyoming; but nothing herein
summary a r- contained shall be construed as preventing the arrest by
any officer of the Government or employee of the United
States in the park without process of any person taken in
the act of violating the law or any regulation of the Sec-
au-retary of the Interior: Provided, That the said commis-
sioner shall only exercise such authority and powers as are
conferred by this act. Ibid. >
Process in fel
ony cases.
Ibid.
Bail, etc. •
Limit
thority.
of
MILITARY LAWS OF THE UNITED STATES.
949
2432. That the commissioner provided for in this act I^V/fid
shall, in addition to the fees allowed by law to commission-
ers of the circuit courts of the United States, be paid an
annual salary of one thousand dollars,1 payable quarterly,
and the marshal of the United States and his deputies, and
the attorney of the United States and his assistants in said
district, shall be paid the same compensation and fees as
are now provided by law for like services in said district.
Sec. 7, ibid.
2433. The marshal of the United States for the district sh^fsputy mar'
of Wyoming may appoint one or more deputy marshals Sec- 6> lbld-
for said park, who shall reside in said park, and the said
United States district and circuit courts shall hold one
session of said courts annually at the town of Sheridan, in Terms of court.
the State of Wyoming, and may also hold other sessions
at any other place in said State of Wryoming or in said
national park at such dates as the said courts may order.
Sec. 6, ibid.
2434. The Secretary of the Interior shall cause to be Jail-
erected in the park a suitable building to be used as a
jail, and also having in said building an office for the use
of the commissioner, the cost of such building not to
exceed five thousand dollars, to be paid out of any moneys
in the Treasury not otherwise appropriated upon the cer-
tificate of the Secretary as a voucher therefor. Sec. 9, ibid.
2435. All costs and expenses arising in cases under this costs, etc.
act, and properly chargeable to the United States, shall be
certified, approved, and paid as like costs and expenses in
the courts of the United States are certified, approved,
and paid under the laws of the United States. Sec. 8, ibid.
2436. This act shall not be construed to repeal existing
laws conferring upon the Secretary of the Interior and Existing laws,
the Secretary of War certain powers with reference to the
protection, improvement, and control of the said Yellow-
stone National Park. Sec. 10, ibid.
Par.
PROTECTION OF BIRDS AND ANIMALS.
Par.
2440. Forfeiture of guns, traps, etc.
2441. .Regulations.
2437. Prohibition of hunting and fishing.
2438. Evidence of violation.
2439. Unlawful transportation of game.
2437. All hunting, or the killing, wounding, or captur-
ing at any time of any bird or wild animal, except dan- et^ay 7 1894 g
gerous animals, when it is necessary to prevent them from4>v-28>p'73-
1 The act of February 19, 1896 (29 Stat. L., 578), and subsequent acts of appropria-
tion contain the requirement that section 21, of the act of May 28, 1896 (29 Stat. L.,
184), shall not be construed "as impairing the right of said commissioner to receive
said salary as herein provided."
950 MILITARY LAWS OF THE UNITED STATES.
destroying human life or inflicting an injury, is prohibited
within the limits of said park; nor shall any fish be taken
out of the waters of the park by means of seines, nets,
traps, or by the use of drugs or any explosive substances
or compounds, or in any other way than by hook and line,
and then only at such seasons and in such times and man-
ner as may be directed by the Secretary of the Interior.
Sec. 4, act of May 7, 1894 (28 Stat. Z., 73).
viStiS?.06 °f 2438- Possession within the said park of the dead bodies,
sec. 4, flrcd. or any par^ thereof, of any wild bird or animal shall be
prima facie evidence that the person or persons having the
same are guilty of violating this act. Ibid.
lawluf^mnspor- 2439. Any person or persons, or stage or express com-
ta/S.etc' ' Panv or railway company, receiving for transportation
any of the said animals, birds, or fish so killed, taken, or
caught shall be deemed guilty of a misdemeanor, and shall
be fined for every such offense not exceeding three hun-
dred dollars. Any person found guilty of violating any
of the provisions of this act or any rule or regulation that
may be promulgated by the Secretary of the Interior with
reference to the management and care of the park, or for
the protection of the property therein, for the preserva-
tion from injury or spoliation of timber, mineral deposits,
natural curiosities or wonderful objects within said park,
or for the protection of the animals, birds, and fish in the
said park, shall be deemed guilty of a misdemeanor, and
shall be subjected to a fine of not more than one thousand
dollars .or imprisonment not exceeding two years, or both,
and be adjudged to pay all costs of the proceedings. 7 bid.
gimsrffrapseetc°f 2440. All guns, traps, teams, horses, or means of trans-
portation of every nature or description used by any per-
son or persons within said park limits when engaged in
killing, trapping, ensnaring, or capturing such wild beasts,
birds, or wild animals shall be forfeited to the United
States, and may be seized by the officers in said park and
held pending the prosecution of any person or persons
arrested under charge of violating the provisions of this
act, and upon conviction under this act of such person or
persons using said guns, traps, teams, horses, or other
means of transportation such forfeiture shall be adjudi-
cated as a penalty in addition to the other punishment
provided in this act. Such forfeited property shall be
disposed of and accounted for by and under the authority
of the Secretary of the Interior. 7bid.
2441, The Secretary of the Interior shall make and pub-
MILITARY LAWS OF THE UNITED STATES. 951
lish such rules and regulations as he may deem necessary J*giiationB.
and proper for the management and care of the park and
for the protection of the property therein, especially for
the preservation from injury or spoliation of all timber,
mineral deposits, natural curiosities, or wonderful objects
within said park, and for the protection of the animals
and birds in the park from capture or destruction, or to
prevent their being frightened or driven from the park;
and he shall make rules and regulations governing the
taking of fish from the streams or lakes in the park. Ibid.
LEASES.
2442. The Secretary of the Interior is hereby authorized groUendsS;econdi-
and empowered to lease to any person, corporation, or tl(^ 3 1894 v
company, for a period not exceeding ten years, at such ^ p> 222<
annual rental as the Secretary of the Interior may deter-
mine, parcels of land in the Yellowstone National Park, of
not more than ten acres in extent for each tract and not in
excess of twenty acres in all to any one person, corporation,
or company on which may be erected hotels and necessary
outbuildings : Provided. That such lease or leases shall not Natural curi-
osities excluded-
include any of the geysers or other objects of curiosity or
interest in said park, or exclude the public from free and
convenient approach thereto or include any ground within
one-eighth of a mile of any of the ge}rsers or the Yellow-
stone Falls, the Grand Canyon, or the Yellowstone River,
Mammoth Hot Springs, or any object of curiosity in the
park.1 Act of August 3, 1894(88 Stat. L., »).
2443. Such leases shall not convey, either expressively .Jthe same sub-
or by implication, any exclusive privilege within the park 28Au^' 1894> v-
except upon the premises held thereunder and for the time
1 Section 2474, Revised Statutes, had contained the following requirement: "The
Secretary may, in his discretion, grant leases for building purposes, for terms not
exceeding ten years, of small parcels of ground, at such places in the park as may
require the erection of buildings for the accommodation of visitors; all of the proceeds
of such leases, and all other revenues that may be derived from any source connected with
the park, to be expended under his direction in the management of the same, and the
construction of roads and bridle paths therein." The act of March 3, 1883 (26 Stat.
L., 620), had contained the following: " The Secretary of the Interior may lease small
portions of ground in the park, not exceeding ten acres in extent for each tract, on
which may be erected hotels and the necessary outbuildings, and for a period not
exceeding ten years; but such lease shall hot include any of the geysers or other objects
of curiosity or interest in said park, or exclude the public from the free and convenient
approach thereto; or include any ground within one quarter of a mile of any of the
geysers or the Yellowstone Falls, nor shall there be leased more than ten acres to any
one person or corporation; nor shall any hotel or other buildings be erected within
the park, until such lease shall be executed by the Secretary of the Interior, and all
contracts, agreements, or exclusive privileges heretofore made or given in regard to
said park, or any part thereof, are hereby declared to be invalid; nor shall the Secre-
tary of the Interior, in any lease which he may make and execute, grant any exclusive
privileges within said park, except upon the ground leased."
952
MILITARY LAWS OF THE UNITED STATES.
therein granted. Every lease hereafter made for any
property in said park shall require the lessee to observe
and obey each and every provision in any act of Congress,
and every rule, order, or regulation made, or which may
hereafter be made, and published b}T the Secretary of the
Interior concerning the use, care, management, or govern-
ment of the park, or any object or property therein, under
penalty of forfeiture of such lease, and every such lease
shall be subject to the right of revocation and forfeiture,
which shall therein be reserved by the Secretary of the
Interior: And provided further, That persons or corpora-
tions now holding leases of ground in the park may, upon
the surrender thereof, be granted new leases hereunder,
and upon the terms and stipulations contained in their
present leases, with such modifications, restrictions, and
reservations as the Secretary of the Interior may prescribe.
This act, however, is not to be construed as mandatory
upon the Secretary of the Interior, but the authority herein
given is to be exercised in his sound discretion. Ibid.
EMPLOYEES.
£rpl3yie883, v.
2444< For everl purpose and object necessary for the
Pr°tection, preservation, and improvement of the Yellow-
stone National Park, including conpensation of superin-
tendent and employees, forty thousand dollars, two thou-
sand dollars of said amount to be paid annually to a
superintendent of said park, and not exceeding nine hun-
dred dollars annually to each of ten assistants, all of whom
shall be appointed by the Secretary of the Interior, and
reside continuously in the park, and whose duty it shall be
to protect the game, timber, and objects of interest therein;
the balance of the sum appropriated to be expended in
the construction and improvement of suitable roads and
bridges within said park, under the supervision and direc-
tion of an engineer officer detailed by the Secretary of War
for that purpose.1 ActofMarchS, 1883 (22 Stat. L., 626).
DETAILS OF TROOPS.
2445. The Secretary of War, upon the request of the
cretary of the Interior, is hereby authorized and directed
make the necessary details of troops to prevent tres-
^he acts of August 7, 1882 (22 Stat. L., 329), and March 3, 1883 (ibid., 626), made
provision for the appointment of a superintendent of the park at a salary of $2,000
per annum, and for the employment of ten assistants at $900 each. These employees
were to reside continually in the park, and it was made their duty to protect the
game, timber, and objects of interest in the park. This provision was repeated in the
acts of July 7, 1884 (23 Stat. L., 211), and March 3, 1885 (ibid., 499).
MILITARY LAWS OF THE UNITED STATES. 953
passers or intruders from entering the park for the purpose
of destroying the game or objects of curiosity therein, or
for any other purpose prohibited by law, and to remove
such persons from the park if found therein. Act of March
3, 1883 (82 Stat. L.,626).
IMPROVEMENTS.
2446. Road extensions and improvements shall hereafter
be made in said park under and in harmony with a general
plan of roads and improvements to be approved by the 31> p- 625-
Chief of Engineers of the Army.1 Act of June 6, 1900
(31 Stat. Z., 625).
EMPLOYMENT OF TROOPS.
2447. The Secretary of War, upon the request of the
Secretary of the Interior, is hereafter authorized and 31Jpn61f >1900' v*
directed to make the necessary detail of troops to prevent
trespassers or intruders from entering the Sequoia National
Park, the Yosemite National Park, and the General Grant
National Park, respectively, in California, for the purpose
of destroying the game or objects of curiosity therein, or
for any other purpose prohibited by law or regulation for
the government of said reservations, and to remove such
persons from said parks if found therein. Act of June 6,
1900(31 Stat. L.,618).
Successive acts of appropriation since that of August 4, 1886 (24 Stat. L., 210),
have made provision for the construction of roads, bridges, and other works of
improvement; all of them have contained the requirement that the work so author-
ized shall be carried on under the direction of the Secretary of War.
CHAPTER
NATIONAL CEMETERIES.
Par.
2448. Maintenance of national ceme-
teries.
2449. Acquisition of lands.
2450. Appraisement,
2451. Payment.
2452-2454. Superintendents.
2455-2457. Inclosures, headstones, and
registers.
Par.
2458-2460. Interments.
2461,2462. Jurisdiction, criminal of-
fenses.
2463,2464. The United States cemetery
near the City of Mexico.
2465. Encroachments by railroads.
2448> Tlie Secretary of War shall provide for the care
etRies 4876 p anc^ maintenance of the national military cemeteries, and
95juiyi4 1876 v ^or ^s purpose shall submit an estimate with his annual
19, p. 99. estimates to Congress, and section four thousand eight
hundred and seventy-six of the Revised Statutes is hereby
repealed. Act of July 24, 1876 (19 Stat. Z., 99).
°f 2449' Tlie Secretary of War shall purchase from the
p owners thereof, at such price as may be mutually agreed
c^e^5]!4' 1899: uPon between the Secretary and such owners, such real
83%' 5 ^269 c' egtate as in his judgment is suitable and necessary for the
Sec. 4870, B. s. purpose of carrying into effect the provisions for national
cemeteries, and obtain from such owners the title in fee
simple for the same. And in case the Secretary of War is
not able to agree with any owner upon the price to be paid
for any real estate needed for such purpose, or to obtain
from such owner title in fee simple for the same, the Sec-
retary is hereby authorized to enter upon and appropriate
any real estate which, in his judgment, is suitable and
necessary for such purposes.
Appraisement. 2450. The Secretary of War, or the owners of any real
6i^ s. s, v. if, P. estate thus entered upon and appropriated, are authorized
Sec. 487i, B. s. to make application for an appraisement of real estate thus
entered upon and appropriated to any circuit or district
court within any State or district where such real estate
is situated; and such courts shall, upon such application,
and in such mode and under such rules and regulations as
it may adopt, make a just and equitable appraisement of
954
MILITARY LAWS OF THE UNITED STATES. 955
the cash value of the several interests of each and every
owner of such real estate and improvements thereon.
2451. When appraisement of the real estate thus entered
upon and appropriated has been made under the order 83M
and direction of the court, the fee simple thereof shall, upon ^ec* 4872,B.s.
payment to the owner of the appraised value, or in case
such owner refuses or neglects for thirty days after the
appraisement of the cash- value of the real estate or im-
provements as aforesaid to demand the same from the
Secretary of War upon depositing the appraised value in
the court making such appraisement to the credit of such -
owner, be vested in the United States, and its jurisdiction
over such real estate shall be exclusive and the same as its
jurisdiction over real estate purchased, ceded, or appro-
priated for the purposes of navy -yards, forts, and arsenals.
The Secretary of War is authorized and required to pay
to the several owner or owners, respectively, the appraised
value of the several pieces or parcels of real estate, as
specified in the appraisement of any of such courts, or to
pa}' into any of such courts by deposit, as hereinbefore
provided, the appraised value; and the sum necessary for
such purpose may be taken from any moneys appropri-
ated for the purposes of national cemeteries.1
1 To authorize payment for land appropriated for the purpose of a national ceme-
tery under the act of February 22, 1867 (14 Stat. L., 400; sec. 4870, Rev. Stat.), the
consent of the legislature of the State in which the land lies is not necessary; nor
in such case is the opinion of the Attorney-General as to the validity of the title
required; though as a prudential measure for the security of the Government it
would seem to be highly expedient to obtain his opinion. XIII Opin. Att. Gen., 131;
XIV; ibid., 271; ibid., 559.
The appraisement of land for a national cemetery, as duly made by a United States
court under sections 4871 and 4872, Revised Statutes, is conclusive" upon the Secre-
tary of War, who must thereupon pay the appraised value as indicated in the latter
section. If indeed there has been fraud in the valuation by which the court has
been deceived in its decree, or its original appraisement is deemed excessive, it may
properly be moved for a new appraisement on the part of the United States. Dig.
Opin. J. A. G., 1763. See XIII Opin. Att. Gen., 27.
To authorize the acquisition by the exercise of the right of eminent domain, of
private land for a national cemetery under sections 4870 and 4871, Revised Statutes,
there must be (1) an existing appropriation (in conformity with the rule of section
3736, Revised Statutes) authorizing the acquisition; and (2) the private owner must
be unwilling to give title, or the Secretary of War be unable to agree with him as to
price. Ibid., par. 1769.
Held that, notwithstanding the provision in section 4872, Revised Statutes, that the
jurisdiction of the United States over land taken for a national cemetery by the right
of eminent domain "shall be exclusive," such a jurisdiction, where the lancl is within
a State, can not legally be vested in the United States except by the cession of the
State legislature. In the absence of such cession on the part of the State sovereignty
an act of Congress must be powerless to confer such an authority, (a) Ibid.
An appropriation for the inclosure and improvement of a cemetery must be regarded
as a ratification of the taking and of the intent to occupv permanently- Johnson v.
U. S., 31 Ct. Cls., 262.
aSee the subsequent opinion of the Attorney-General in XIII Opins., 131.
956 MILITARY LAWS OF THE UNITED STATES.
SUPERINTENDENTS.
enStepoefricnementedr- 2452« The Secretary of War shall cause to be erected at
leFeb.22,i867, c. *ne principal entrance of each national cemetery a suitable
JM1™??' building to be occupied as a porter's lodge; and shall ap-
0^n^ a meritorious and trustworthy superintendent to
reside therein, for the purpose of guarding and protecting
the cemetery and giving information to parties visiting the
same.
selected issuper* 2453. The superintendents of the national cemeteries
inMay is ?872 c >sna^ be selected from meritorious and trustworthy^ soldiers,
135 s' lf v' 17> p' either commissioned officers or enlisted men of the Volun-
sec.4874,n.s. j-eer or Regular Army, who have been honorably mustered
out or discharged from the service of the United States,
and who may have been disabled for active field service in
the line of duty.
salary of super- 2454. The superintendents of the national cemeteries
mtendents. A .
sec. 4875, U.K. shall receive for their compensation from sixty dollars to
seventy -five dollars a month each, according to the extent
and importance of the cemeteries to which they may be
respectively assigned, to be determined by the Secretary of
War; and they shall also be furnished with quarters and
fuel at the several cemeteries.1
INCLOSURES, HEADSTONES, AND REGISTERS.
and 2455. In the arrangement of the national cemeteries
'#>id established for the burial of deceased soldiers and sailors,
7 1p?2345: ^e Secretary of War is hereby directed to have the same
^r^3^71?)73^- inclosed with a good and substantial stone or iron fence;
sec.4877,B.s. an(j ^o cause each grave to be marked with a small head-
stone or block, which shall be of durable stone, and of such
design and weight as shall keep it in place when set, and
shall bear the name of the soldier and the name of his State
inscribed thereon, when the same are known, and also with
the number of the grave inscribed thereon, corresponding
with the number opposite to the name of the party in a
1 The superintendent of a national cemetery over which the State has 'ceded juris-
diction to the United States, and within the limits of which he resides, is exempt
from the duty devolved by the State upon all male persons between certain ages
to work upon the public roads. Otherwise if the State has not ceded jurisdiction,
or if the superintendent resides elsewhere within its jurisdiction. XVI Opin. Att.
Gen., 468.
Superintendents of national cemeteries are no part of the Army, but civilians, being
required indeed by section 4874, Revised Statutes, to be selected from persons who
have been honorably discharged from the military service. They are therefore, of
course, notsubject to the Articles of War or to trial by court-martial, and for any serious
misconduct on the part of a superintendent a removal from office would be the
only adequate remedy. Dig. Opin. J. A. G., 1767.
MILITARY LAWS OF THE UNITED STATES. 957
register of burials to be kept at each cemetery and at the
office of the Quartermaster-General, which shall set forth
the name, rank, company, regiment, and date of death of
the officer or soldier; or if these are unknown, it shall be
so recorded.
2456. That the Secretary of War is hereby authorized to 80Si^t0graves
erect headstones over the graves of soldiers who served in jjyjjj1**6 ceme"
the Regular or Volunteer Army of the United States dur- 2oFpb283i 18?9' v'
ing the war for the Union, and who have been buried in
private village or city cemeteries, in the same manner as
provided by the law of March third, eighteen hundred and
seventy-three, for those interred in national military ceme-
teries; and for this purpose, and for the expenses incident
to such work, so much of the appropriation of one million
dollars, made in the act above mentioned, as has not been
expended, and as ma}7 be necessary, is hereby made
available. Act of February 3, 1879 (20 Stat. Z., 281).
' 2457. The Secretary of War shall cause to be preserved Records.
in the records -of his Department the names and places of
burial of all soldiers for whom such headstones shall have
been erected by aiithorit}r of this or former acts.1 Ibid.
INTERMENTS.
2458. All soldiers, sailors, or marines, dying in the serv-
ice of the United States, or dying in a destitute condition,
after having been honorably discharged from the service, 2ooUsyi187'v8i2' c
or who served during the late war, either in the regular or jflfc^1?/1 ^02
volunteer forces, may be buried in any national cemetery *jar/ ^ 187j^5c
free of cost. The'x production of the honorable discharge sec. 48*78, B.S.
of a deceased man shall be sufficient authority for the
superintendent of any cemetery to permit the interment.
2459. Army nurses, honorably discharged from their MaT.Vis^v.
service as such, may be buried in any national cemetery, 29> p> 625<
and, if in a destitute condition, free of cost. The Secre-
tary of War is authorized to issue certificates to those army
nurses entitled to such burial. Act of March 3, 1897 (29
Stat. Z., 625).
2460. For expenses of burying in the Arlington National Burial of indi-
/-< • ,1 • 7 A i T-A • , • , gent soldiers.
Cemeterv or in tne cemeteries 01 the District ot Columbia, Mar. 3, 1399, v.
. , . TT • 1 T 30. P. 1108.
indigent ex-Union soldiers, sailors, and marines of the late
1 Provision for carrying this statute into effect has been made in the acts of appro-
priation of August 4, 1886 (24 Stat. L., 249), March 3, 1887 (24 Stat. L., 534), October
2, 1888 (25 Stat. L., 539), March 2, 1889 (25 Stat. L., 969), August 30, 1890 (26 Stat.
L., 400), March 3, 1891 (26 Stat. L., 973), August 5, 1892 (27 Stat. L., 377), March
3, 1893 (27 Stat. L., 599), August 18, 1894 (28 Stat. L., 405), March 2, 1895 (28 Stat.
L., 949), June 11, 1896 (29 Stat. L., 443), and subsequent acts of appropriation.
958 MILITAEY LAWS OF THE UNITED STATES.
civil war who die in the District of Columbia, to be dis-
Limitation. bursed by the Secretary of War, at a cost not exceeding
forty dollars for such burial expenses in each case, exclu-
sive of cost of grave, three thousand dollars.1 Act of
March 3, 1899 (30 Stat. Z., 1108).
JURISDICTION, CRIMINAL OFFENSES.
uStef ^Se^ 246L From the time an~v State legislature shall have
ceVmeteriestional given? or shall hereafter give, the consent of such State to
2oJlslyi1v1i6°'p't'ne purchase by the United States of any national ceme-
18|ec.4882,B.s. ^eiT? the jurisdiction and power of legislation of the United
States over such cemetery shall in all courts and places be
held to be the same as is granted by section eight, article
one, of the Constitution of the United States; and all pro-
visions relating to national cemeteries shall be applicable
to the same.
faSnTUnatiomi 2462t Every person who willfully destroys, mutilates,
ceFebte^ei867 c defaces, injures, or removes any monuments, gravestone,
406 8' 8' >y' 14> P' or °ther structure, or who willfully destroys', cuts, breaks,
Sec.488i, R.S. injures, or removes any tree, shrub, or plant within the
limits of any national cemetery, shall be deemed guilty of
a misdemeanor, punishable by a fine of not less than twenty-
five dollars, and not more than one hundred, or by imprison-
ment for not less than fifteen days and not more than sixty.
The superintendent in charge of any national cemetery is
authorized to arrest forthwith any person engaged in com-
mitting any misdemeanor herein prohibited, and to bring
such person before any United States commissioner or
judge of any district or circuit court of the United States
within any State or district where any of the cemeteries
are situated, for the purpose of holding such person to
answer for such misdemeanor, and then and there shall
make complaint in due form.2
UNITED STATES CEMETERY NEAR THE CITY OF MEXICO.
theeStyeoFMS- 2463- Tlle President is authorized to provide, out of the
lCMar 3 1873 c ordinary annual appropriations, for establishing and main-
T's taining United States military cemeteries, for the proper
care and preservation and maintenance of the cemetery or
1 A similar provision occurs in the annual acts of appropriation since that of March
2, 1889 (25 Stat. L., 409).
2 By section 4881, Revised Statutes, the superintendent of a national cemetery is
authorized to arrest persons who injure, etc., gravestones, trees, shrubs, etc., within
the cemetery. Held that he could not, under this authority, legally arrest a person
who fired a gun into or across the cemetery without causing any such injury as is
specified in the statute, but, for the arrest and punishment of such a tresspasser, must
have recourse to the local authorities. Dig. Opin. J. A. G., par. 1766.
MILITARY LAWS OF THE UNITED STATES. 959
burial ground near the City of Mexico, in which are
interred the remains of officers and soldiers of the United
States, and of citizens of the United States, who fell in
battle or died in and around said city.
2464. The cemetery in Mexico shall be subject to the T£hbaet
rules and regulations affecting United States national nril-
itary cemeteries within the limits of the United States, so
far as they may, in the opinion of the President, be appli-
cable thereto.
ENCROACHMENT BY RAILROADS, ETC.
2465. That no railroad shall be permitted upon the right
of way which may have been acquired by the United States bl5jjlern2 1391 v.
to a national cemetery, or to encroach upon any roads or 28> p- m
walks constructed thereon and maintained by the United
States. Act of March 0, 1896 (28 Stat. Z., 949).1
1 By separate statutes provision has been made for the construction of roads and
other approaches as follows: Act of January 20, 1878 (20 Stat. L., 242), and March 3,
1881 (21 Stat. L., 447) , at Vicksburg, Miss.; March 3, 1881 (21 Stat. L., 445), August 7,
1882 (22 Stat. L., 319), March 3, 1883 (22 Stat. L., 617), and July 7, 1884 (23 Stat. L., 219),
at Chattanooga, Tenn.; March 3, 1881 (21 Stat. L., 447), August 7, 1882 (22 Stat. L.,
150), and July 7, 1884 (22 Stat. L., 319), at Fort Scott, Kans. ; July 3, 1882 (22 Stat. L.,
150) , and March 3, 1891 (26 Stat, L., 978) , at Mound City, 111. ; March 3, 1883 (22 Stat.
L., 617), July 2, 1886, chapter 610 (24 Stat. L., 121), at Chalmette, La.; March 3, 1885
(23 Stat. L., 507), October 2, 1888 (25 Stat. L., 539), and August 30, 1890 (26 Stat, L., 401),
at Marietta, Ga. ; March 3, 1885 (23 Stat. L., 507) , at Baton Rouge, La. ; August 4, 1880
(24 Stat. L., 249), and October 2, 1888 (25 Stat. L., 539) , at Springfield, Mo. ; July 2,
1886 (24 Stat. L., 121) , at Natchez, Miss. ; July 28, 1886 (24 Stat. L., 159), at Knoxville,
Tenn. ; February 23, 1887 ( 24 Stat, L. , 416) , and March 2, 1889 ( 25 Stat. L. , 969) , at Dan-
ville, Va. ; February 28, 1887 (24 Stat. L., 431), at Richmond, Va. ; October 2, 1888 (25
Stat. L., 539), March 2, 1889, chapter 416 (25 Stat. L., 915), August 30, 1890 (26 Stat. L.,
401), at Antietam, Md.; August 30, 1890 (26 Stat. L., 401), at Hampton, Va.; March
2, 1889 (25 Stat. L., 969), at Beverly, N. J. ; January 8, 1889 (25 Stat, L., 641), at Flor-
ence, S. C.; August 30, 1890 (26 Stat. L., 401), roads at Culpeper and Fredericksburg,
Va., and a levee at Brownville, Tex.; May 14, 1890 (26 Stat. L., 108), at Port Hud-
son, La. ; April 9, 1890 (26 Stat. L., 46), at Staunton, Va. ; March 3, 1891 (26 Stat. L.,
978) , August 5, 1892 (27 Stat. L., 377), March 3, 1893 (27 Stat. L., 599), August 18, 1894
(28 Stat. L., 405) , March 2, 1895 (28 Stat. L., 909), June 11, 1896 (29 Stat. L., 443) , July
1, 1898 (30 Stat. L.,634), March 3, 1899 (30 Stat. L., 1108), at the Presidio of San
Francisco, Cal. ; December 11, 1890 (26 Stat. L., 687 j, at Alexandria, Va. ; July 1, 1898
(30 Stat. L., 634), at Mound City, 111. ; July 1, 1898 (30 Stat. L., 634) , at Natchez, Miss.
Held that the title and possession of the United States to and of land situate at El
Paso, Texas, duly purchased for cemetery purposes, would properly be protected
against a continuous trespass on the part of the municipality in cutting a street
through the land, by an injunction sued out in the proper court, the remedy by suit
for damages being inadequate.a Dig. Opin. J. A. G., par. 2115.
al Pomeroy, Equity Jurisprudence, sec. 138; 3 ibid., sees. 1347 1356.
CHAPTER XL VI.
FLAG AND SEAL OF THE UNITED STATES.
Par.
2466. The flag to be 13 stripes and 45
stars.
2467. A star to be added for every new
State.
Par.
2468. Seal of the United States.
2469. Secretary of State to keeo and use
the seal.
The flag to be
13 stripes and 45
Jan. 13, 1794, e.
l,v.l,p.341: Apr.
4, 1818, c. 34, s. 1,
v. 3, p. 415.
Sec. 1791, B.S.
A star to be
added for every
new State.
Apr. 4, 1818, c.
34, s. 2, v. 3, p. 415.
Sec.l792,R.S.
Seal of the
United States.
Sept. 15, 1789, c.
14,s.3, v.l, p. 68.
Sec.l793,K.S.
2466. The flag of the United States shall be thirteen
horizontal stripes, alternate red and white; and the union
of the flag- shall be [forty-five] stars, white in a blue
field.
2467. On the admission of a new State into the Union
one star shall be added to the union of the flag; and such
addition shall take effect on the fourth da}T of July then
next succeeding such admission.1
2468. The seal heretofore used by the United States in
Congress assembled is declared to be the seal of the United
States.
1 The Union of the flag now contains forty-five stars, arranged in accordance with
the following order:
WAR DEPARTMENT, Washington, March 17 ', 1896.
The field or union of the^ national flag in use in the Army will, on and after July
4, 1896, consist of forty-five stars, in six rows, the first, third, and fifth rows to have
eight stars, and the second, fourth, and sixth rows seven stars each, in a blue field,
arranged as follows:
* * * * * ' * * *
*******
********
*******
********
*******
DANIEL S. LAMONT,
Secretary of War.
Held that there was no law precluding an alien residing in the United States, tl
subject of a foreign government with which we are at peace, from displaying the flag
of his country on his dwelling. Dig. Opin. J. A. G., par. 404.
MILITARY LAWS OF THE UNITED STATES. 961
2469. The Secretary of State shall keep such seal, and
shall make out and record, and shall affix the same to,
civil commissions for officers of the United States,1 to be
appointed by the President, by and with the advice and ^rv- 318'18^ 2^;
consent of the Senate, or by the President alone. But the Jig- s- 1*> v- & P-
.seal shall not be affixed to any commission before the same ^J^ UIYCT'
has been signed by the President of the United States, nor 15|ec im B g
to any other instrument, without the special warrant of
the President therefor.
1 The commissions of military officers now bear the seal of the War Department.
Act of March 28, 1896 (29 Stat. L., 75).
22924—08 - 61
CHAPTER XLVTI.
THE ARTICLES OF WAR.1
LIMITATIONS OF PUNISHMENT.
Section.
1342. Articles of war.
Article.
1. Officers shall subscribe these articles.
2. Articles to be read to recruits.
3. Officers making unlawful enlistments.
4. Discharges.
5. Mustering persons not soldiers.
6. Taking money on mustering.
7. Return of regiments, etc.
8. False returns.
9. Captured stores secured for public
service.
10. Accountability for arms, etc.
11. Furloughs.
Article.
12. Musters.
13. False certificates.
14. False muster.
15. Allowing military stores to be dam-
16. Wasting ammunition.
17. Losing or spoiling horses, accouter-
ments, etc.
18. Commanders not to be interested in
sale of victuals, etc.
19. Disrespectful words against the Presi-
dent, etc.
20. Disrespect toward commanding offi-
1HISTORICAL NOTE.
In the early periods of English history military law existed only in time of actual
war. When war broke out troops were raised as occasion required, and ordinances
for their government, or, as they were afterwards called, Articles of War, were issued
by the Crown, with the advice of the constable or of the peers or other experienced
persons, or were enacted by the commander in chief in pursuance of an authority for
that purpose given in his commission^from the Crown, (a)
These ordinances or articles, however, remained in force only during the service
of the troops for whose government they were issued, and ceased to operate on the
conclusion of peace. Military law in time of peace did not come into existence
until the passing of the first mutiny act in 1689.
The system of governing troops in active service by articles of war, issued under
the prerogative power of the Crown, whether issued by the King himself, or by the
commanders in chief, or by other officers holding commissions from the Crown, con-
tinued from the time of the Conquest till long after the passing of the annual mutiny
acts, (6) and did not actually cease till the prerogative power of issuing such articles
was superseded in 1803 by a corresponding statutory power, (c)
The earlier articles were of excessive severity, inflicting death or loss of limb for
almost every crime. Gradually, however, they assumed something of -the shape
which they bear in modern times, and the ordinances or articles of war issued by
Charles I in 1672 formed the groundwork of the Articles of War of 1878, which were
consolidated with the mutiny act in the army discipline and regulation act of 1879,
which was replaced by the army act of 1881. The army act of 1881, which now con-
stitutes the military code of the British army, has of itself no force, but requires to
a Grose, Military Antiquities, vol. 2,
b Barwis v. Keppel, 2 Wilson's ~
c 43 Geo. Ill, chapter 20.
962
Wilson's Rep.,
3.58.
14.
MILITARY LAWS OF THE UNITED STATES.
963
Article.
21. Striking superior officer.
22. Mutiny.
23. Failing to resist mutiny.
24. Quarrels and frays.
25. Reproachful or provoking speeches.
26. Challenges to fight duels.
27. Allowing persons to go out and fight;
seconds and promoters.
28. Upbraiding another for refusing
challenge.
29. Wrongs to officers, redress of.
30. AVrongs to soldiers, redress of.
31. Lying out of quarters.
32. Soldiers absent without leave.
33. Absence from parade without leave.
34. One mile from camp without leave.
35. Failing to retire at retreat.
36. Hiring duty.
37. Conniving at hiring duty.
38. Drunk on duty.
39. Sentinel sleeping on post.
40. Quitting guard, etc., without leave.
41. False alarms.
42. Misbehavior before the enemy, cow-
ardice, etc.
43. Compelling a surrender.
44. Disclosing watchword.
45. Relieving the enemy.
Article.
46. Corresponding with the enemy.
47. Desertion.
48. Deserter shall serve full term.
49. Desertion by resignation.
50. Enlisting in other regiment without
discharge.
51. Advising to desert.
52. Misconduct at divine service.
53. Profane oaths.
54. Officers to keep good order in their
commands.
55. Waste or spoil and destruction of
property without orders.
56. Violence to persons bringing pro-
visions.
57. Forcing a safeguard.
58. Certain crimes during rebellion.
59. Offenders to deliver up to civil mag-
istrates.
60. Certain crimes of fraud against the
United States.
61. Conduct unbecoming an officer and
gentleman.
62. Crimes and disorders to prejudice
of military discipline.
63. Retainers of camp.
64. All troops subject to Articles of War.
65. Arrest of officers accused of crimes.
be brought into operation annually by another act of Parliament, thus securing the
constitutional principle of the control of the Parliament over the discipline requisite
for the government of the army, (a)
The Rules and Articles of War were derived originally from the English mutiny
act and articles of war under the following circumstances: In May, 1775, the Conti-
nental Congress met in Philadelphia and at once proceeded to levy and organize an
army. A system of rules for its government was, of course, indispensable. The
members of this Congress were naturally familiar with the English military code.
The local troops serving with the English forces sent to this country in 1754 had
been brought under the mutiny act, while the armies of Gage and Burgoyne were
governed by the English code at the time the first " Continental troops " were raised.
It was but natural, therefore, that this body should turn to the mutiny act as a
model, and on June 30, 1775, the Congress promulgated articles, 69 in number,
for. the government of the Continental troops. These articles were adopted from
the English, in the same form as our present articles, modified, however, to meet the
milder views which were entertained by a people who entertained an objection to a
standing army. Additions -were made in November of this year, but were repealed
by the act of September 30, 1776, and new articles adopted. These articles, 102 in
number, were modeled upon the British form and were arranged in 18 sections.
With some modifications they remained in force until 1806.
In September, 1789, they were formally recognized and adapted to the new Con-
stitution by the First Congress of the United States. In 1806 the articles, 101
in number, were rearranged and promulgated by Congress; (b) the divisions into
sections were dropped and the old model substituted. These, with five or six modifi-
cations, remained in force for nearly seventy years, and were the governing code
of the Army until the passage of the act of June 22, 1874 (c) (ISStat. L., 113). These
articles are embodied in the Revised Statutes as sections 1342 and 1343 of that work.
a Manual of Military Law, War Office, Pall Mall, 1884, pp. 9-18.
b Act of April 10, 1806 (2 Stat. L,, p. 359).
elves, Mil. Law, p. 17.
964
MILITARY LAWS OF THE UNITED STATES.
Article.
66. Soldiers accused of crimes.
67. Receiving prisoners.
68. Report of prisoners.
69. Releasing prisoner without author-
ity; escapes.
70. Duration of confinement.
71. Copy of charges and time of trial.
72. Who may appoint general courts-
martial.
73. Commanders of divisions and sep-
arate brigades may appoint in
time of war.
74. Judge-advocate.
75. Members of general courts-martial.
76. When requisite number not at a post.
77. Regular officers, on what courts may
sit.
78. Marine and Regular Army officers
associated on courts.
79. Officers triable by general courts-
martial.
80. The summary court.
81. Regimental courts.
82. Garrison courts.
83. Jurisdiction of field officers', regi-
mental, and garrison courts.
84. Oath of members of courts-martial.
85. Oath of judge-advocate.
86. Contempts of court.
87. Behavior of members.
88. Challenges by prisoner.
89. Prisoner standing mute.
90. Judge - advocate, prosecutor and
counsel for prisoner.
91. Depositions.
92. Oath of witness.
93. Continuances.
95. Order of voting.
96. Sentence of death.
97. Penitentiaries.
98. Flogging.
99. Discharge and dismissal of officers.
100. Publication of officers cashiered for
cowardice or fraud.
101. Suspension of officers' pay.
102. No person tried twice for same, etc.
Articles of
War. Limits of
punishment.
Apr. 10, 1806, o
Article.
103. Limitation of time of prosecution.
104. Approval of sentence by officer
ordering court.
105. Confirmation of death sentence.
106. Confirmation of dismissals in time
of peace.
107. Dismissal by division or brigade
courts.
108. General officers, sentences respect-
ing.
109. Confirmation by officer ordering
court-
HO. Confirmation of field officers' sen-
tences.
111. Suspension of sentence of death or
dismissal.
112. Pardon and mitigation of sentences.
113. Proceedings forwarded to judge-
advocate-general.
114. Party entitled to a copy.
115. Courts of inquiry, how ordered.
116. Members of court of inquiry.
117 Oaths of members and recorder of
court of inquiry.
118. Witnesses before courts of inquiry.
119. Opinion, when given by.
120. Authentication of proceedings of
court of inquiry.
121. Proceedings of court of inquiry used
as evidence.
122. Command when different corps hap-
pen to join.
123. Regular and volunteer officers on
same footing as to rank, etc.
124. Rank of militia officers on duty with
officer of regular or volunteer
forces.
125. Deceased officers' effects.
126. Deceased soldiers' effects.
127. Effects of deceased officers and sol-
diers to be accounted for.
1 28. Articles of War to be published once
in six months to every regiment,
etc.
Section.
1343. Spies.
SECTION 1342. The armies of the United States shall be
governed by the following rules and articles. The word
;er, as used therein, shall be understood to designate
Psec!i342 B. s. commissioned officers; the word soldier shall be understood
to include noncommissioned officers, musicians, artificers,
and privates, and other enlisted men, and the convictions
MILITARY LAWS OF THE UNITED STATES. 965
mentioned therein shall be understood to be convictions by
court-martial.1 Sec. 131$, R. S.
That whenever by any of the Articles of War for the
government of the Army the punishment on conviction of
any military offense is left to the discretion of the court-
martial, the punishment therefor shall not, in time of
peace, be in excess of a limit which the President may
prescribe.2 Act of September 07, 1890 (26 Stat. Z., 491).
ARTICLE 1. Every officer now in the Army of the United 8Ug£355 sthh^e
States shall within six months from the passing of this ^Art*.' war.
act, and every officer hereafter appointed shall before he
enters upon the duties of his office, subscribe these rules
and articles.
ART. 2. These rules and articles shall be read to every reacftoreVuits!6
enlisted man at the time of or within six days after his fatrt29Wi8i3, c.
enlistment, and he shall thereupon take an oath or affirma- ^g.^Jfg. 3; 186?]
tion in the following form: "I, A. B., do solemnly swear £ ;§'9.s'11> v>12>
(or affirm) that I will bear true faith and allegiance to the 3 Art* War'
United States of America; that 1 will serve them honestly
and faithfully against all their enemies whomsover, and
that I will obey the orders of the President of the United
States and the orders of the officers appointed over me,
according to the rules and articles of war." This oath
may be taken before any commissioned officer of the
Army.3
1 The Army and Navy of the United States are engaged in the performance of pub-
lic, not private, duties. Service in the army or navy of one's country, according to the
terms of the enlistment, never implies slavery or involuntary servitude, even where
the soldier or sailor is required against his will to respect the terms upon which he
voluntarily engaged to serve the public. Involuntary service rendered for the pub-
lic, pursuant as well to the requirements of a statute as to a previous voluntary
engagement, is not, in any legal sense, either slavery or involuntary servitude.
(Robertson v. Baldwin, 165 U. S., 275, 299.) (Dissenting opinion of Justice Harlan.)
2 Under the authority conferred by this statute two executive orders have been
issued prescribing limits of punishment for offenses to which specific penalties are not
attached in the Articles of War. See G. O. No. 21, A. G. O. of 1891, as modified by
the executive order of March 20, 1895 (MANUAL FOR COURTS- MARTIAL, pp. 59-63).
3 The taking of the oath prescribed by this article is not ah essential to the validity
of an enlistment. It is, however, an almost invariable part of a regular formal
enlistment, and in the absence of any provision in our law defining in what an enlist-
ment shall consist, it is important that it should not be omitted for the reason that
the oath as taken and subscribed by the party constitutes the regular and in some
cases the only legal written evidence that the personal act of enlisting has been com-
pleted by him. Dig. Opin. J. A. G., par. 1251. But see Grimley's case (137 U. S.,
147), in which it was held that the oath of allegiance was the pivotal fact which
changed the status from that of civilian to soldier. Section 11 of the act of August 3,
1861 (12 Stat. L., 289), conferred authority to administer the oath of allegiance upon
any commissioned officer of the Army.
The statement in regard to age, incorporated in the printed blank which contains
the form of oath prescribed by this article, is no part whatever of the legal oath.
Dig. Opin. J. A. G., par. 19.
By direction of the Secretary of War, such of the Articles of War as relate specially
to the duties and rights of enlisted men and the penalties for military crimes will be
plainly read, and so far as necessary, explained to each recruit just before administer-
ing to him the oath of enlistment. G. 0. 210, A. G. O., 1899.
966 MILITAEY LAWS OF THE UNITED STATES.
ing un?awfuT!n- ART. 3- Every officer who knowingly enlists or musters
"^rt.'war. ln^° ^ne military service any minor over the age of sixteen
68Mgr'65'v.8?'p' Jears without the written consent of his parents or guard-
c47-^^ 3>v!8i2' ians? or anJ minor under the age of sixteen years, or any
i86478c 237 lys 5>msane or intoxicated persons, or any deserter from the
s'lsV'c3^ Ili8 militaiT or naval service of the United States, or any per-
is lim 4c°i6?asy son w^° ^as ^een convicted of any infamous criminal offense
2, v. 17, p. 117. shall, upon conviction, be dismissed from the service or
suffer such other punishment as a court-martial may direct.1
iisTmentulenten Fraudulent enlistment, and the receipt of any pay or
3 vUl272?> 277 ' s' all°wance thereunder, is hereby declared a military offense
and made punishable, by a court-martial, under the sixty-
second Article of War.2 Sec. 3, act of July 27, 1892 (27
Stat. Z., 277).
? Ar?.avFar.' ART. 4. No enlisted man, duly sworn, shall be discharged
from the service without a discharge in writing, signed by
a field officer of the regiment to which he belongs, or by
the commanding officer, when no field officer is present:
1 Neither this article nor the directory provision in pari materia of sections 1117-
1118, Revised Statutes, renders void enlistments of the classes of persons whose
enlistment or muster-in is made punishable and interdicted. Except, of course, in
the case of an enlistment of a person clearly non compos mentis, and whose contract
is a nullity in law independently of any statute, these enlistments are voidable only;
the United States may hold the party to service or may discharge him forthwith in
the manner authorized by the fourth article. Ibid., 20, par. 1.
It is not essential to a conviction under this article that the officer shall be shown
to have had positive and absolute knowledge that the person enlisted by him
belonged to one of the classes of persons whose enlistment is made an offense. If he
had such knowledge or information as to place the fact beyond a reasonable doubt
he may properly be deemed to have acted " knowingly." Ibid., par. 2.
The enlistment of a party who was evidently so much under the influence of
liquor as to make it doubtful whether he comprehended the legal effect of his acts,
held an enlistment of an " intoxicated person ' ' and an offense under this article.
Ibid., par. 3.
2 This offense (constituted and made punishable as a violation of article 62, by
section 3 of the act of July 27, 1892, c. 272) is defined in Circular No. 13 (A. G. O. ),
1892. The misrepresentation or concealment characterizing it must have induced
the enlistment of the soldier, and must have related to a fact which, if known, would
have caused his rejection. Where the offense consisted in his having concealed the
fact that he had been discharged with a questionable character — viz, " very good
except when intoxicated, then bad" — held that such offense was chargeable as "fraud-
ulent enlistment, " provided the knowledge of this fact on the part of the recruiting
officer would have prevented the enlistment. Dig. Opin. J. A. G., par. 1412.
A fraudulently enlisting soldier may be disposed of in either of two ways, viz, he
may be brought to trial for his offense under the statute or he may be discharged
"without honor." If brought to trial and convicted, and his sentence does not
include dishonorable discharge (as it need not do under the order prescribing a maxi-
mum punishment for this offense) , held that the Government could not properly also
summarily discharge him. While it might have resorted to either course, it would
scarcely be just to subject the offender to both. Ibid., par. 1413.
A fraudulent contract of enlistment is not void, but voidable only at the option of
the Government. The Government, on becoming cognizant of the "fraud, may avoid
the contract, or waive the objection and allow it to stand — in which latter case the
accepted service is as legal as that of any other soldier. Where the fraudulent char-
acter of an enlistment contract did not become known until after a part of it had
been executed, held that while the same as to its unexecuted portion might legally
then be avoided and terminated, yet as to the part executed it was a -valid con-
tract, and the soldier could not lawfully be required to refund money paid for that
part. Ibid., par. 1414.
MILITARY LAWS OF THE UNITED STATES. 967
and no discharge shall be given to an enlisted man before
his term of service has expired, except by order of the
President, the Secretary of War, the commanding officer
of a department, or by sentence of a general court-martial.1
1 While no soldier can assume to discharge himself from the military service, he is
yet, at the expiration of his contract of enlistment, entitled in general to be at once
formally discharged by the proper authority, (a) In view, howevei, of the terms
of the first clause of this article, held that a discharge of a soldier actually takes effect,
like a deed, only upon the delivery, actual or constructive, of the written certificate
of discharge. Thus, where a soldier's discharge was not received by him at his sta-
tion— a hospital in the field — till at the end of three months after its date, held that
it did not take effect till its receipt, and that the soldier was entitled to pay up to
that time. Dig. Opin. J. A. Gen., 20, par. 1.
A formal discharge, given to a soldier in accordance with this article, is legal evi-
dence of the fact of discharge, as well as of the circumstances — when the same are
stated — under which the soldier was separated from the service. (6) Ibid. , 21, par. 2.
Where an honorable discharge has once duly taken effect by the delivery of the
formal certificate (see art. 4, sec. 1), it is final and can not be revoked unless
obtained by fraud, (c) But in such a case the revocation should be made within a
reasonable time, otherwise the Government will be deemed to have waived the
defect. A mere order for a discharge may, of course, be recalled or suspended at any
time before it is executed by the delivery of the discharge ordered. Where an officer
of volunteers had been duly mustered out of service — a form of honorable discharge —
and was thus a civilian, held that a revocation in orders of his muster out, and a
substitution therefor of a dishonorable discharge, would — in the absence of any fraud
in the case — be wholly unauthorized and illegal. Ibid, 355, par. 1.
Where a soldier, by making an alteration in his " descriptive list," so as to cause
it to appear that his term of enlistment, which was in fact five years, was three years
only, induced the regimental commander to give him an honorable discharge at the
end of three years' service, held, upon the fraud being presently discovered, that the
discharge might legally be revoked and the soldier be brought to trial by court-
martial under the ninety-ninth (now sixty-second) article of war. But where, by
competent authority, according to the present fourth article, an honorable dis-
charge wras given to a soldier who was at the time in arrest under charges, held that
such discharge — no fraud being imputable to the soldier — was final, and could not
legally be revoked. Ibid, par. 1142.
The fact that a soldier has been a deserter does not affix an irreparable taint upon
his status or service when returned from desertion, or preclude his receiving an hon-
orable discharge, if either he be restored to duty without trial, or having been
tried and sentenced, he yet, by reason of his imprisonment being fully executed or
being remitted before the end of his term, is returned to duty and is in the perform-
ance of faithful service when his term is completed. A discharge in the usual form
then given to him, is an authoritative declaration by it that he leaves the military
service in a status of honor. Thus honorably discharged, he can not, by reason of his
having formerly deserted, be deprived of any rights to pay, allowances, or bounty
usually incident upon honorable discharge, (d) Ibid, 356, par. 4.
This article, in its second clause, specifies two kinds of discharge as authorized to
be given to soldiers before their terms of enlistment have expired, and which are quite
distinct in their nature. The one is given by Executive order and the other by sen-
tence; the one is a rescinding of the contract of the soldier, authorized to be resorted
to whenever deemed desirable, at the discretion of the Secretary of War, etc., and is,
in law, an honorable discharge or a discharge without honor, as the case may be; the
other is a punishment, and therefore a dishonorable discharge. One of the officials
named can, of his own authority, no more order a soldier to be, in terms technically,
dishonorably discharged than can a court-martial adjudge a soldier to be honorably
discharged. A discharge can not legally be given a soldier before the expiration of
his term of service except as authorized in this article; and no officer, other than the
three designated, can exercise the authority, expressly devolved upon them, of dis-
charging by order, (e) Ibid., 21, par. 3.
a See Justice Story's charge to the jury in United States v. Travers, 2 Wheeler Cr. C., 509; also
Prendergast, 42.
6 See Board of Commissioners v. Mertz, 27 Ind., 103; Hanson v. S. Scituate, 115 Mass., 336; U. S. v.
Wright, 5 Philad., 296.
cSee opinion of the Attorney-General, in XVI Opins., 352, in which it was held that an honorable dis-
charge obtained by gross falsehood and fraud was revocable by the Secretary of War.
dSee United States v. Kelly, 15 Wallace, 36.
elll Opin. Att. Gen., 353.
968 MILITARY LAWS OF THE UTSITED STATES.
officer who knowingly musters as a soldier
5 Art. war. a person wno [s nof; a soldier shall be deemed guilty of
knowingly making a false muster, and punished accord-
ingly.
onTm^sntfrSgney ART. 6. Any officer who takes money, or other thing, by
c Art. war. way of gratification, on mustering any regiment, troop,
battery, or company, or on signing muster-rolls, shall be
dismissed from the service, and shall thereby be disabled
to hold any office or employment in the service of the
United States.
m!a£!2c!*fre8fl~ ART. 1. Every officer commanding a regiment, an inde-
irt. war. pendent troop, battery, or company, or a garrison, shall,
in the beginning of every month, transmit through the
proper channels, to the Department of War, an exact re-
turn of the same, specifying the names of the* officers then
absent from their posts, with the reasons for and the time
of their absence. And any officer who, through neglect
or design, omits to send such returns, shall, on conviction
thereof, be punished as a court-martial may direct.
s Art/fvar?8' ART. 8. Every officer who knowingly makes a false return
to the Department of War, or to any of his superior offi-
cers authorized to call for such returns,-of the state of the
regiment, troop, or company, or garrison under his com-
mand; or of the arms, ammunition, clothing, or other
stores thereunto belonging, shall, on conviction thereof
before a court-martial, be cashiered.1
8ecu?edr!ors^ubs ART. 9. All public stores taken from the enemy shall be
llC9SArt.lcwar. secured for the service of the United States; and for neg-
lect thereof the commanding officer shall be answerable.2
1 This article refers only to returns made by certain commanders as such. It is
only as commander of a regiment, company, or garrison that an officer can be made
amenable to a charge under the article. An officer not exercising one of these com-
mands is not within its terms, (a) Dig. Opin. J. A. Gen., par. 1.
In 1872 an officer of the line of the Army, on duty as post quartermaster at Padu-
cah, Ky., was tried for a violation of this article in making false returns of the
property for which he was responsible, and was convicted. As the article applies
exclusively to officers exercising the specific commands named in the statute, and as
the officer in this exercised no one of the commands so specified, the findings under
the eighth article were disapproved by the reviewing authority. Gen. Court-Martial
Orders, No. 12, War Dept., 1872. See, also, G. C. M. O., No. 19, War Dept., 1872.
An officer "knowingly makes a false return " under this article who makes a return
which he knows to be untrue in any material particular. Ibid, 22, par. 2.
The "returns" indicated in the article can scarcely be said to include returns of
funds, what is contemplated being mainly returns of the personnel or materiel of the
command. A false return of a company fund would more properly be charged under
another article, as the sixty-first or sixty-second. Ibid, par. 2.
2 The title to property captured from an enemy in war vests, at the instant of cap-
ture, in the captor's Government, which may make such disposition of it as it may
deem expedient. The policy and practice of the United States, as to the property
captured on land, has been to retain it for governmental uses or to sell it and convert
a See G. C. M. 0. 12, 19, War Department, 1872.
MILITARY LAWS OF THE UNITED STATES. 969
AST. 10. Every officer commanding a troop, battery, or
company, is charged with the arms, accouterments, ammu- 10 Art* War>
nition, clothing, or other military stores belonging to his
command, and is accountable to his colonel in case of their
being lost, spoiled, or damaged otherwise than by unavoid-
able accident, or on actual service.
AET. 11. Everv officer commanding a regiment or an Furloughs.
s . Mar. 3, 1863, c.
independent troop, battery, or company, not in the field, 75, s. 32, v. 12, p.
may, when actually quartered with such command, grant u Art. war.
furloughs to the enlisted men, in such numbers and for
such time as he shall deem consistent with the good of the
service. Every officer commanding a regiment, or an inde-
pendent troop, battery, or company, in the field, may
grant furloughs not exceeding thirty days at one time, to
five per centum of the enlisted men, for good conduct in
the line of duty, but subject to the approval of the com-
mander of the forces of which said enlisted men form a
part. Every company officer of a regiment, commanding
any troop, battery, or company not in the field, or com-
manding in any garrison, fort, post, or barrack, may, in
the absence of his field officer," grant furloughs to the
enlisted men, for a time not exceeding twenty days in six
months, and not to more than two persons to be absent at
the same time.
ART. 12. At every muster of a regiment, troop, battery, ^IrfVar
or company, the commanding officer thereof shall give to
the mustering officer certificates, signed by himself, stating
how long absent officers have been absent and the reasons
of their absence. And the commanding officer of every
troop, battery, or company shall give like certificates, stat-
ing how long absent noncommissioned officers and private
the proceeds to its own use. See the "Captured and abandoned property act" (act
of March 12, 1863) , in the chapter entitled EMPLOYMENT OP MILITARY FORCE, ETC.
This provision is in accordance with the principle of the law of nations and of war,
that enemy's property duly captured in war becomes the property of the govern-
ment or power by whose forces it is taken, and not that of the individuals who take
it. (a) " Private persons can not capture for their own benefit." (b) Military stores
taken from the enemy, becoming upon capture the property of the United States,
Congress, which by the Constitution (c) is exclusively vested with the power to dis-
pose of the public property, as well as to make rules concerning captures on land
and water, can alone authorize the sale or transfer of the same. An officer or soldier
of the Army who assumes of his own authority to appropriate such articles renders
himself chargeable with a military offense, (d) Ibid, par. 3.
aU. S. v. Klein, 13 Wallace, 136; Decatur v. U. S., Devereux, 110; White v. Red Chief, 1 Woods, 40:
Brannerv. Felkner, 1 Heisk., 232; Worthy v. Kinamon, 44 Ga., 299; Huff v. Odom,49 ibid., 395; XIII Opin.
Att. Gen., 105; Hough (Practice), 329, 330; G. 0. 54, Headquarters of Army, Mexico 1848- G O 21 War
Department, 1848; G 0. 64, 107, ibid., 1862. And see also Lamar v. Browne, 2 Otto, 195, in regard to the
same principle as illustrated by the captured and abandoned property act of March 12, 1863.
b Worthy v. Kinamon, supra.
c Article I, section 8, paragraph 11; Article IV, section 3, paragraph 2.
a See, in this connection, section 6313, Revised Statutes.
970 MILITARY LAWS OF THE UNITED STATES.
soldiers have been absent and the reasons of their absence.
Such reasons and time of absence shall be inserted in the
muster rolls opposite the names of the respective absent
officers and soldiers, and the certificates, together with the
muster rolls, shall be transmitted by the mustering officer
to the Department of War, as speedily as the distance of
the place and muster will admit.
Fake certiii- ART. 13. Every officer who signs a false certificate,
13 Art. war. relating to the absence or pay of an officer or soldier, shall
be dismissed from the service.1
u Art™ war1"' ART. 14. Any officer who knowingly makes a false mus-
ter of man or horse, or who signs, or directs, or allows
the signing of any muster roll, knowing the same to con-
tain a false muster, shall, upon proof thereof by two wit-
nesses, before a court martial, be dismissed from the serv-
ice, and shall thereby be disabled to hold any office or
employment in the service of the United States.2
Allowing mm- ART. 15. Any officer who, willfully or through neglect,
damaged68 e suffers to be lost, spoiled, or damaged, any military stores
67, £\ v. 12,' p.' belonging to the United States, shall make good the loss
69is Art. war. or damage, and be dismissed from the service.
wasting am- ART. 16. Any enlisted man who sells, or willfully or
16 Art. 'war. through neglect wastes the ammunition delivered out to
him, shall be punished as a court-martial may direct.
selling horse, ART. 17. Anv soldier who sells or through neglect loses
etc., to be pun- 9
ished by court- or spoils his horse, arms, clothing, or accouterments shall
July 27, 1892, v. be punished as a court-martial may adjudge, subject to
i? Art. war. such limitations as may be prescribed \>y the President by
virtue of the power vested in him.3
1 Held that the mere signing by an officer of a voucher for his pay before the last
day of the month for which it was due did not constitute an offense of the class
intended to be made punishable by this article, (a) Dig. Opin. J. A. Gen., par. 4.
2 For a case in which an officer was convicted of false muster (although the offense
was erroneously charged under the sixty-first article) see G. O., 183, A. G. O., 1863.
3 This article is quite independent of the regulations contained in article 60, Army
Regulations, relating to boards of survey. The latter pass upon questions of pecun-
iary responsibility for the loss, etc., of public property. The court-martial, under
this article, simply imposes punishment. (6) Ibid., par. 5.
The description, "his clothing," refers to articles which are regularly issued to the
soldier for his use in the service and with the safe-keeping of which he is charged.
His property in them is qualified by the trust that he can not dispose of them while
he is in the military service, and can only use them for military purposes. Ibid.,
par 6.
Improper dispositions of property in the charge and use of soldiers, other than
the dispositions indicated in this article, will in general properly be charged under
article 62. Likewise the selling, through neglect losing, etc., by soldiers, of property
issued to them, but not mentioned in article 17, should be charged under article 62.
Thus held that a selling or losing of the following articles was not punishable under
a See G. C. M. O., 28, War Department, 1872.
b Where a trial is had, the proceedings of a board of survey, already ordered in the same case, will
not be competent evidence to prove the fact of the loss, etc., charged. G. C. M. O., 45, Department of
the Missouri, 1877; G. C. M. O., 15, Department of Texas, 1877.
MILITAEY LAWS OF THE UNITED STATES. 97ll
'ART. 18. Any officer commanding in any garrison, fort,
or barracks of the United States who, for his private ftd-«*gjj| |tacle of
vantage, lays any duty or imposition upon, or is interested 18 Art* War*
in, the sale of any victuals, liquors, or other necessaries of
life, brought into such garrison, fort, or barracks, for the
use of the soldiers, shall be dismissed from the service.
ART. 19. Any officer who uses contemptuous or disre- Disrespectful
J T» . words against
spectful words against the President, the Vice-President, the President,
the Congress of the United States, or the chief magistrate i» Art. war.
or legislature of any of the United States in which he is
quartered, shall be dismissed from the service, or otherwise
punished, as a court-martial may direct. Any soldier who
so offends shall be punished as a court-martial may direct. l
article 17, but under article 62, viz, sheets, pillows, pillowcases, mattress covers,
shelter tent, barrack bag, greatcoat strap, tin cup, spoon, knife, fork, meat-ration
can, cartridges. Ibid., par. 8.
Only three offenses are made punishable by this article — selling, through neglect
losing, and through neglect spoiling the property named therein. Any other form of
wrongful disposition should be made the subject of a charge under article 60 or arti-
cle 62. Ibid., par. 7.
"Unlawfully disposing of" (or "otherwise unlawfully disposing of") clothing,
arms, etc., is not a proper form for the charge under this article. A charge under
this article should not be expressed in the alternative — as that the accused "sold"
or "through neglect lost." The selling, through neglect losing, and through neglect
spoiling, are distinct offenses and are to be so charged. Ibid., par. 9, 10.
Clothing issued and charged to a soldier is not now (as it was formerly) regarded
as remaining the property of the United States. It is now considered as becoming,
upon issue, the property of the soldier, although his use of it is, for purposes of dis-
cipline, qualified and restrictedo Thus, he commits a military offense by disposing of
it as specified in this article, though the United States may suffer no loss. Ibid. , par. 11.
The present seventeenth article (as amended by the act of July 27, 1892) does not
authorize a stoppage or forfeiture of pay to reimburse the United States. The stop-
page which was enjoined by the old form of the article is dropped entirely from the
present statute. This provides for punishment only — does not provide any means
of reimbursing the appropriation out of which the lost, etc. , property was paid for,
or of repairing the loss or damage as such. So held (April, 1893) that a sentence,
upon a conviction under this article, which adjudged a stoppage of pay "to reim-
burse the United States for the value of the clothing alienated" was unauthorized
and inoperative. Ibid., par. 12.
1 When a trial of an officer or soldier has been resorted to under this article, it has
usually been on account of the use of "contemptuous or disrespectful words against
the President," or the Government mainly as represented by the President. The
deliberate employment of denunciatory or contumelious language in regard to the
President, whether spoken in public, or published, or conveyed in a communication
designed to be made public, has, in repeated cases, been made the subject of charges
and trial under this article; (a) and, where taking the form of a hostile arraignment,
by an officer, of the President or his Administration, for the measures adopted in
carrying on the late war — a juncture when a peculiar obedience and deference were
due, on the part of the subordinate, to the President as Executive and Commander
in Chief — was in general punished by a sentence of dismissal. On the other hand, it
was held that adverse criticisms of the acts of the President, occurring in political
discussions, and which, though characterized by intemperate language, were not
apparently intended to be disrespectful to the President personally or to his office,
or to excite animosity against him, were not in general to be regarded as properly
exposing officers or soldiers to trial under this article. To seek, indeed, for ground
of offense in such discussions would ordinarily be inquisitorial and beneath the dig-
nity of the Government. Dig. Opin., J. A. G., par. 13.
a See cases in G. C. M. O. 43, War Department, 1863; G. O. 171, Army of the Potomac, 1862; G. O. 23,
ibid., 1863; G. O. 52,. Middle Department, 1863; G. O. 119, Department of the Ohio, 1863; G. O. 33,
Department of the Gulf, 1863; G. O. 68, Department of Washington, 1864; G. O. 86, Northern Depart-
ment, 1864; G. O. 1, ibid., 1865; G. O. 29, Department of North Carolina, 1865.
972 MILITARY LAWS OP THE UNITED STATES.
AllT- 20" An7 officer or soldier who behaves himself
info°Art?rwar. w^h disrespect toward his commanding officer shall be
punished as a court-martial may direct.1
perioro^cer. su ART. 21. Any officer or soldier who, on any pretense
21 Art. war. whatsoever, strikes his superior officer, or draws or lifts
up any weapon, or offers any violence against him, being
in the execution of his office, or disobeys any lawful com-
mand of his superior officer, shall suffer death, or such
other punsishment as a court-martial may direct.2
1 The disrespect here indicated may consist in acts or words; (a) and the particular
acts or words relied upon as constituting the offense should properly be set forth in
substance in the specification. (6) It must be shown in evidence under the charge
that the officer offended against was the ''commanding officer" of the accused, (c)
The commanding officer of an officer or soldier in the sense of this article is properly
the superior who is authorized to require obedience to his orders from such officer or
soldier, at least for the time being. Thus where a battalion was temporarily detached
from a regiment and placed under the orders of the commander of a portion of the
Army distinct from that in which the main part of the regiment was included, held
that it was the commander of this portion who was the commanding officer of the
detachment, and that the use by an officer of such detachment of disrespectful lan-
guage in reference to the regimental commander (who had remained with and in
command of the main body of the regiment) was properly chargeable not under this
article, but rather under the sixty-second. Ibid., par. 14.
Held that disrespectful language used in regard to his captain by a soldier when
detached from his company and serving at a hospital, to the surgeon in charge of
which he has been ordered to report for duty, was an offense cognizable by court-
martial not under this article, but under article 62. Ibid., par. 15.
2 To justify a conviction of the capital offense of offering violence against a superior
officer, it should be made to appear in evidence that the accused knew or believed
that the person assaulted was in fact an officer in the Army and was his "superior"
in rank. (d) Ibid., par. 17.
Under a charge of a violation of this article in offering violence to a superior officer,
it should be alleged and proved that the officer assaulted was at the time "in the
execution of his office." Ibid., par. 18.
In charging a striking or doing of violence to a superior officer under this article,
in a case where the assault was fatal, it was allowable to add in the specification,
"thereby causing his death," as indicating the measure of violence employed.
Ibid., par. 19.
The "superior officer" in the sense of this article need not necessarily have been
the commanding officer of the accused at the time of the offense. The article is thus
broader than article 20, which relates only to an offense against a commanding
officer. Ibid., par. 20.
"The first duty of a soldier is obedience, and without this there can be neither
discipline nor efficiency in an army." McCall v. McDowell, 15 Fed. Cas., 1235.
"To insure efficiency an army must be, to a certain extent, a despotism. Each
officer * * * is invested with an arbitrary power over those beneath him, and
the soldier who enlists in the army waives, in some particulars, his rights as a civil-
ian, surrenders his personal liberty during the term of his enlistment, and consents
to come and go at the will of his superior officers. He agrees to become amenable to
the military courts, to be disciplined for offenses unknown to the civil law, to relin-
quish his right of trial by jury, and to receive punishments which, to the civilian,
seem out of all proportion to the magnitude of the offense." U. 8. v. Clarke, 3 Fed.
Rep., 713 — Brown, J.
"An army is not a deliberative body. It is the executive arm. Its law is that of
obedience. No question can be left open as to the right to command in the officer, or
the duty of obedience in the soldier. Vigor and efficiency on the part of the officer
aG. O. 44, Department of Dakota, 1872. And see G. C. M. O. 28, War Department, 1875; G. O. 47,
Department of the Platte, 1870.
bG. C. M. O. 35, Department of the Missouri, 1872.
cG. O. 53, Department of Dakota, 1871.
dSee G. O. 34, Department of Virginia, 1863.
MILITARY LAWS OF THE UNITED STATES. 973
and confidence among the soldiers in one another are impaired if any question be
left open as to their attitude to each other." In re Grimley, 137 U. S., 153.
The offense of disobedience of orders contemplated by this article consists in a
refusal or neglect to comply with a specific order to do or not to do a particular
thing. A mere failure to perform a routine duty is properly charged under article
62. (a) Where an officer neglected fully to perform his duty under general instruc-
tions given him in regard to the conduct of an expedition against Indians, held that
his offense was properly chargeable not under the twenty-first, but under the sixty-
second article. Dig. Opin., J. A. G., par. 25.
The fact that any stated duty is enjoined in regulations or orders does not in itself
render a nonperformance of such duty a disobedience of orders in violation of the
twenty-first article; but to support this charge it is essential that there should be
shown an intentional disregard of authority as is evinced by a willful refusal or omis-
sion to comply with the specific command of a superior officer. G. C. M. 0. 26,
WarDept., 1872.
A noncompliance by a soldier with an order emanating from a noncommissioned
officer, or offering violence to the latter is not an offense under this article, but one
to be charged, in general, under the sixty-second, (b) Dig. Opin., J. A. G. par. 21.
Under a charge of a disobedience of the order of a superior officer in violation of
this article, it should be alleged, and should appear from the evidence introduced,
that the order or "command" was "lawful." An officer or soldier is not punish-
able under this article for disobeying an unlawful order. But the order of a proper
superior is to be presumed to be lawful, and should be obeyed, where it is not clearly
and obviously in contravention of law. Unless the illegality is unquestionable, he
should obey first and seek redress, if entitled to any, afterwards. A military inferior
in refusing or failing to comply with the order of a superior on ^he ground that the
same is, in his opinion, unlawful does so, of course, on his own personal responsi-
bility and at his own risk. Ibid., par. 22.
To justify, from a military point of view, a military inferior in disobeying the
order of a superior, the order must be one requiring something to be done which is
palpably a breach of law and a crime or an injury to a third person, or is of a serious
character (not involving unimportant consequences only) and if done would not be
susceptible of being righted. An order requiring the performance of a military duty
or act can not be disobeyed with impunity unless it has one of these characters. If
not triable under the twenty-first article, such disobedience may be tried under the
sixty-second. In the Cedarquist case it was held by the Judge- Advocate-General
that "there could be no more dangerous principle in the government of the Army
than that each soldier should determine for himself whether an order requiring a
military duty to be performed is necessary or in accordance with orders, regulations,
decision circulars, or custom, and may disobey the order if, in his judgment (taking,
of course, all risks in case his judgment should be erroneous) , it should not be neces-
sary or should be at variance with orders, regulations, decision circulars, or custom.
It is his duty to obey such order first, and if he should be aggrieved thereby, he can
seek redress afterwards." Ibid., par. 23.
The civil responsibility is another matter. Civil courts have sometimes made
allowance for the requirements of military discipline, but if they should not, the
military obligation would remain unimpaired. The soldier, in entering the service,
has voluntarily submitted himself to this double and possibly conflicting liability.
The evil of an undisciplined soldiery would be far greater than the injustice (appar-
ent, rather than actual) of this principle. Ibid., note 1.
An order given by a military officer to his private should be obeyed by the private,
and will be his full protection in a criminal prosecution, unless the illegality of the
order is so clearly shown on its face that a man of ordinary sense and understanding
would know when he heard it read or given that the order was illegal. In re Fair
et al., 100 Fed. Rep., 149; Riggs v. State, 3 Cold., 85; McCall v. McDowell, Fed.
Cases, No. 8673; U. S. v. Clark, 31 Fed. Rep., 710; In re Grimley, 137 U. S., 147;
In re Lewis, 83 Fed. Rep., 159; In re Waite, 81 Fed. Rep., 359.
Whatever may be the rule in time of war and in the presence of actual hostilities,
military officers can no more protect themselves than civilians for actual wrongs,
committed in time of peace, under orders emanating from a source which is itself
without authority in the premises. Hence, a military officer seizing liquors sup-
posed to be in Indian country, when they are not, is liable to an action as a tres-
passer. Bates v. Clark, 95 U. S., 204.
An officer or soldier on leave of absence can not in general be made liable to a
wKM.- M< 0> 26> War DePartment, 1872; G. C. M. O. 7, Department of Texas, 1875; G. O. 24, 35,
Fifth Military District, 1868.
_ b See the provision, introductory to the Articles of War, of section 1342, Revised Statutes, in which
it is specified that " the word officer, as used therein, shall be understood to designate commissioned
"
officers.
974 MILITARY LAWS OF THE UNITED STATES.
22Art!war. ART. 22- Any officer or soldier who begins, excites,
causes, or joins in any mutiny or sedition, in any troop,
battery, company, party, post, detachment, or guard, shall
suffer death, or such other punishment as a court-martial
may direct.1
charge of disobedience of orders, except, indeed, where required by a positive order,
issued on account of a public emergency, to return before his leave has expired, and
failing to comply with such requirement. Dig. Opin. J. A. G., 29, par. 10.
An illiterate soldier, unable to sign his name, was furnished with a written exhibit
of it, and ordered by his commanding officer to continue to copy the same till he
could properly sign his name to papers. He refused. Held that such order, while
not in fact a legal one, was not one palpably illegal, and that the soldier should have
obeyed it and complained afterwards. Disobedience of an order, however, where its
illegality is merely doubtful, should be charged under the sixty-second rather than
under this article. Ibid. , par. 26.
Where an officer respectfully declined to comply with the direction of his superior
to sign the certificate to a report of target firing, on the ground that the facts set
forth in such certificate were not within his knowledge, he having been stationed at
the butt, where he was not in a position to be informed as to such facts, held that he
was not amenable to a charge of disobedience of orders under this article. Ibid.,
par. 29.
The term officer ( "superior officer" ), in this as in other articles of war, means com-
missioned officer. (Sec. 1342, Revised Statutes.) So held that the disobedience by
a cadet private of the Military Academy of an order of a cadet lieutenant of his com-
pany was not chargeable under this article, but was an offense under article 62.
Ibid., par. 30.
1 Mutiny at military law may be defined to be an unlawful opposing or resisting of
lawful military authority, with intent to subvert the same, or to nullify or neutralize
it for the time, (a) It is this intent which distinguishes mutiny from other offenses,
and especially from those with which, to the embarrassment of the student, it has
frequently been confused, viz, those punishable by the twenty-first article, as also
those which, under the name of ' ' mutinous conduct, ' ' are merely forms of violation of
article 62. The offenses made punishable by this article are not necessarily "aggre-
gate" or joint offenses;(6) among them is the beginning or causing of a mutiny,
which may be committed by a single person. In general, however, the offense here
charged will be a concerted proceeding, the concert itself going far to establish the
intent necessary to the legal crime. Ibid., par. 31.
To charge as a capital offense under this article a mere act of insubordination or dis-
orderly conduct on the part of an individual soldier or officer, unaccompanied by the
intent above indicated, is irregular and improper, (c) Such an act should in general
be charged under article 20, 21, or 62. Ibid., par. 31.
Soldiers can not properly be charged with the offense of joining in a mutiny under
this article where their act consists in refusing, in combination, to comply with an
unlawful order. Thus, where a detachment of volunteer soldiers who, under and by
virtue of acts of Congress specially authorizing the enlistment of volunteers for the
purpose of the suppression of the rebellion, and with the full understanding on their
part and that of the officers by whom they were mustered into the service that they
were to be employed solely for this purpose, entered into enlistments expressed in
terms to be for the war, and after doing faithful service during the war, and just before
the legal end of the war, but when it was practically terminated, and when the vol-
unteer organizations were being mustered out as no longer required for the prosecu-
tion of the war, were ordered to march to the Plains, and to a region far distant from
the theater of the late war, and engage in fighting Indians, wholly unconnected as
allies or otherwise with the recent enemy, and thereupon refused together to comply
with such orders, held that they were not chargeable with mutiny. While by the
strict letter of their contracts tney were subject to be employed upon any military
service up to the last day of their terms of enlistment, the public acts and history of
a Compare the definition and description of mutiny or revolt at maritime law in U. S. v. Smith,
1 Mason, 147; U. S. v. Haines, 5 ibid., 276; U. S. v. Kelly, 4 Wash., 528; U. S. v. Thompson, 1 Sumner,
171: U. S. v. Borden, 1 Sprague, 376.
ft Samuel, 254, 257; G. O. 77, War Department, 1837; G. 0. 10, Department of the Missouri, 1863.
cSeeG. O. 7, War Department, 1848; G. O. 115, Department of Washington, 1865, G. C. M. 0. 73,
Department of the Missouri, 1873. And compare U. S. v. Smith, 1 Mason, 147; U. S. v. Kelly, 4 Wash.,
528; U. S. v. Thompson, 1 Sumner, 171.
MILITARY LAWS OF THE UNITED STATES. . 975
ART. 23. Any officer or soldier who, being present at any JStfn/0 re~
mutiny or sedition, does not use his utmost endeavor to 23 Art- War-
suppress the same, or having knowledge of any intended
mutiny or sedition, does not, without delay, give informa-
tion thereof to his commanding officer, shall suffer death,
or such other punishment as a court-martial may direct.
ART. 24. All officers, of what condition soever, have fr^arrels and
power to part and quell all quarrels, frays, and disorders, 24 Art- War-
whether among persons belonging to his own or to another
corps, regiment, troop, battery, or company, and to order
officers into arrest, and noncommissioned officers and sol-
diers into confinement, who take part in the same, until
their proper superior officer is acquainted therewith. And
whosoever, being so ordered, refuses to obey such officer
or noncommissioned officer, or draws a weapon upon him,
shall be punished as a court-martial may direct.1
the time made it perfectly clear that this enlistment was entered into for the partic-
ular purpose and in contemplation of the particular service above indicated, and to
treat the parties as bound to another and distinct service, and liable to capital pun-
ishment if they refused to perform it, was technical, unjust, and in substance illegal.
Ibid., par. 32.
In a case where a brief mutiny among certain soldiers of a colored regiment was
clearly provoked by inexcusable violence on the part of their officer, the outbreak
not having been premeditated, and the men having been prior thereto subordinate
and well conducted, advised that a sentence of death imposed by a court-martial upon
one of the alleged mutineers should be mitigated and the officer himself brought to
trial. Similarly advised in the cases of sentences of long terms of imprisonment
imposed on sundry colored soldiers who, without previous purpose of revolt, had
been provoked into momentary mutinous conduct by the recklessness of their officer
in firing upon them and wounding several, in order to suppress certain insubordina-
tion which might apparently have been quelled by ordinary methods. (a) Ibid.,
par. 33.
1 It is a principle of the common law that any bystander may and should arrest
an affrayer. 1 Hawkins, P. C., c. 63, s. 11; Timothy v. Simpson, 1 C. M. & R., 762,
765; Phillips r. Trull, 11 Johns, 487. And that an officer or soldier, by entering the
military service, does not cease to be a citizen, and as a citizen is authorized and
bound to put. a stop to a breach of the peace committed in his presence, has been
specifically held by the authorities. Burdett v. Abbott, 4 Taunt., 449; Bowyer, Com.
on Const. L. of Eng., 499; Simmons, sees. 1096-1100. This article is thus an appli-
cation of an established common-law doctrine to the relations of the military service.
See its application illustrated in the following general orders: G. 0. 4, War Depart-
ment, 1843; G. O. 63, Department of the Tennessee, 1863; G. O. 104, Department of
the Missouri, 1863; G. O. 52, Department of the South, 1871; G. 0. 92, ibid., 1872.
Dig. Opin. J. A. G., note 2, page 16.
Force used.— The force to be used in quelling an affray or maintaining the peace is
that only which is necessary to secure or subdue the offenders. It does not consist
of repeated blows, inflicted by way of punishment for past deeds, but must be such
force as is preventive in character, and must not exceed the strict necessity of the
case requiring such acts of prevention. No officer has authority to inflict punishment
for past offenses of any kind. This authority is possessed by courts only. G. O.,
No. 4, A. G. p., 1843; see also, G. O., par. 7, of G. O. 53, A. G. O., of 1842.
In suppressing disorders, etc., means should be proportioned to ends to be gained;
violent measures, clearly unnecessary, will not be justified. U. S. v. Carr, 1 Woods, 480.
For a case in which it became incumbent upon a junior officer to "part and quell"
an affray, and, in the performance of his duty under this article, to give orders to a
military superior, who was a participant in the disturbance, see General Court-
Martial Orders, No. 20, War Department, of 1880.
a Compare cases in G. O. 12, War Department, 1866; G. O. 104, ibid., 1863: G. C. M. O. 50, Headquar-
ters of Army, 1867.
976 MILITARY LAWS OF THE UNITED STATES.
or
Reprp°rovohking ART- 25- No officer or soldier shall use any reproachful
sp25CArts.' war. or provoking speeches or gestures to another. Any officer
who so offends shall be put in arrest. Any soldier who so
offends shall be confined, and required to ask pardon of the
party offended, in the presence of his commanding officer.1
flg^dlST8 to ART- 26- No officer or soldier shall send a challenge to
i9Fpb244' 1877> v ano^ner officer or soldier to fight a duel, or accept a chai-
se Art. war. ienge so sent. Any officer who so offends shall be dis-
missed from the service. Any soldier who so offends shall
suffer such punishment as a court-martial may direct.2
sonslotoinjo Po6ut ART. 27. Any officer or noncommissioned officer, com-
onds fifnd pfo- man(ling a guard, who, knowingly and willingly, suffers
m27eArt. war. anv Person to go forth to fight a duel, shall be punished as
a challenger; and all seconds or promoters of duels, and
carriers of challenges to fight duels, shall be deemed prin-
cipals, and punished accordingly. It shall be the duty of
any officer commanding an army, regiment, troop, battery,
company, post, or detachment, who knows or has reason to
believe that a challenge has been given or accepted by any
officer or enlisted man under his command, immediately to
arrest the offender and bring him to trial.3
1This article confers no jurisdiction or power to punish on courts-martial, but
merely authorizes the taking of certain measures of prevention and restraint by com-
manding officers — i. e. , measures preventive of serious disorders such as are indicated
in the two following articles relating to duels, (a) Dig. Opin. J. A. G., par. 34.
2 To establish that a challenge was sent, there must appear to have been communi-
cated by one party to the other a deliberate invitation in terms or in substance to
engage in a personal combat with deadly weapons, with a view of obtaining satisfac-
tion for wounded honor. (6) The expression merely of a willingness to fight, or the
use simply of language of hostility or defiance, will not amount to a challenge. On
the other hand, though the language employed be couched in ambiguous terms, with
a view to the evasion of the legal consequences, yet if the intention to invite to a
duel is reasonably to be implied — and ordinarily, notwithstanding the stilted and
obscure verbiage employed, this intent is quite transparent — a challenge will be
deemed to have been given. And the intention of the message, where doubtful
upon its face, may be illustrated in evidence by proof of the circumstances under
which it was sent, and especially of the previous relations of the parties, the contents
of other communications between them on the same subject, etc. (c) And technical
words in an alleged challenge may be explained by a reference to the so-called duel-
ling code, (d) (Ibid., par. 35.)
It may be noted that our Articles of War, unlike the British, fail to make punish-
able, as a specific military offense, the engaging in a duel. Such an act, therefore,
would, as such, be in general chargeable only under article 62. Ibid., note 4.
*On the general subject of challenges, and the question what constitutes a chal-
lenge, see the principal cases of the sending of challenges in our service, as pub-
lished in G. O. 64, A. G. O., 1827; G. O. 39, 41, ibid., 1835; G. O. 2, War Department,
1858; G. 0., 330, ibid., 1863; G. O. 11, Army of the Potomac, 1861; G. O. 46, Depart-
ment of the Gulf, 1863; G. O. 223, Department of the Missouri, 1864; G. O. 130,
ibid., 1872; G. O. 33, Department and Army of the Tennessee, 1864. And compare
Commonwealth v. Levy, 2 Wheeler, Cr. C., 245; Commonwealth v. Tibbs, 1 Dana,
524; Commonwealth v. Hart, 6 J. J. March, 119; State v. Taylor, 1 So. Ca., 108; State
v. Strickland, 2 Nott & McCord, 181; Ivey v. State, 12 Ala., 277; Aulger v. People, 34
111., 486; 2 Bishop, Cr. L., sec. 314; Samuel, 384-387; State v. Gibbons, 1 South, 51.
a Compare Samuel, 372. cSee note 1 to article 27. par. 2.
* Compare the definition in 2 Wharton, Cr. L. sees. 2624-2679. d State v. Gibbons, 1 South, 51.
MILITARY LAWS OF THE UNITED STATES. 977
ART. 28. Any officer or soldier who upraids another
officer or soldier for refusing a challenge shall himself be in|8cjrtlewlr'
punished as a challenger; and all officers and soldiers are
hereby discharged from any disgrace or opinion of disad-
vantage which might arise from their having refused to
accept challenges, as they will only have acted in obedience
to the law, and have done their duty as good soldiers, who
subject themselves to discipline.
ART. 29. Any officer who thinks himself wronged by the Ce^0redre8s of"
commanding officer of his regiment, and, upon due appli- 29 Art- War-
cation to such commander, is refused redress, may complain
to the general commanding in the State or Territory where
such regiment is stationed. The general shall examine into
said complaint and take proper measures for redressing
the wrong complained of; and he shall, as soon as possible,
transmit to the Department of War a true statement of
such complaint, with the proceedings had thereon.1
ART. 30. Anv soldier who thinks himself wronged bv wrongs to soi-
' ^ diets; redress of.
any officer may complain to the commanding officer of his so Art- War-
regiment, who shall summon a regimental court-martial for
the doing of justice to the complainant. Either party may
appeal from such regimental court-martial to a general
court-martial; but if, upon such second hearing, the appeal
appears to be groundless and vexatious, the party appeal-
ing shall be punished at the discretion of said general
court-martial.2
1 This article is expressly confined to cases of alleged wrongs on the part of regi-
mental commanders. It can not be extended to apply to a complaint of wrong done
by a post commander who is not also the commanding officer of the regiment of the
complainant. (Dig. Opin. J. A. G., par. 36.)
The right in charges and appeals is not to be exercised in any mode or style the
subordinate pleases, but with some reasonable circumspection, and in good faith, and
in subjection to the controlling law of discipline, which, to sustain military author-
ity, requires obedience and forbids disobedience to commanding officers. These
rights, and the mode of exercising them, have been well and carefully defined in the
General Order from the War Department of No. 16 of 1851. Under color of charges or
appeals, a subordinate has no right to avail himself of the opportunity to behave with
contempt to his commanding officer. Where such a case is alleged in the specifications,
a court-martial will entertain and try the charge. (G. O. No. 1, A. G. O., 1856.)
2 See the title "Regimental Courts-Martial" in the chapter entitled MILITARY
TRIBUNALS.
This article is not inconsistent with article 83, which prohibits regimentel courts
from trying commissioned officers. It does not contemplate or provide for a trial of
an officer as an accused, but simply an investigation and adjustment of some matter
in dispute — as, for example, a question of accountability for public property, of right
to pay or to an allowance, of relief from a stoppage, etc. The regimental court does
not really act as a court, but as a board, and the "appeal" authorized is practically
from one board to another. But though the regimental court has no power to find
"guilty" or "not guilty," or to sentence, it should come to some definite opinion or
conclusion — one sufficiently specific to allow of its being intelligently reviewed by the
general court, if desired. (Dig. Opin. J. A. G. , par. 37 ; see also ibid. , paragraphs 38-42. )
The "regimental court-martial" under the thirtieth article of war can not be used
22924—08 62
978 MILITARY LAWS OF THE UNITED STATES.
°ut °f ART. 31 • Any officer or soldier who lies out of his quar-
31 Art. war. £erg? garrison? or camp, without leave from his superior
officer, shall be punished as a court-martial ma}^ direct.
ART. ^2. Any soldier who absents himself from his troop,
32 Art. war. battery, company, or detachment, without leave from his
commanding officer, shall be punished as a court-martial
may direct.1
Absence from ART. 33. Any officer or soldier who fails, except when
parade without »
IFirt war Prevented by sickness or other necessity, to repair, at the
fixed time, to the place of parade, exercise, or other ren-
dezvous, appointed by his commanding officer, or goes
as a substitute for a general court-martial or court of inquiry, for it can not try an
officer nor make an investigation for the purpose of determining whether he shall
be brought to trial. When, if the soldier's complaint should be sustained, the only
redress would be a reprimand to the officer, the matter would not be within the juris-
diction of this court. It can only investigate such matters as are susceptible of re-
dress by the doing of justice to the complainant — that is, when in some way he can
be set right by putting a stop to the wrongful condition which the officer has caused
to exist. Erroneous stoppages of pay, irregularity of detail, the apparent require-
ment of more labor than from other soldiers and the like might in this way be inves-
tigated and the wrongful condition put an end to. The court will in such cases
record the evidence and its conclusions of fact and recommend the action to be taken.
The members of the court (and the judge-advocate) will be sworn faithfully to per-
form their duties as members (and judge-advocate) of the court, and the proceedings
will be recorded as nearly as practicable in the same manner as the proceedings of
ordinary courts-martial. Manual for Courts-Martial (1901), p. 99, note. (Dig. Opin.
J. A. G., par. 42, note 1.)
In the case of Brevet-Major Henshaw, tried by court-martial in 1856 for disrespect
to his commanding officer, Major Andrews, Seventh Infantry, the conduct of Major
Andrews was thus remarked on by the Secretary of War: "An experienced officer
who had served with him (Major A.) admits his treatment of his men to be harsh
and violent and his conduct very reprehensible in this respect. This was *the con-
siderate testimony of a friendly witness, and is such evidence of the fact as calls for
a decided expression of the opinion of the President. A commanding officer has no
right to be insulting, harsh, or abusive to those in his command. Both officers and
enlisted men are equally entitled to be protected from ill-treatment by him. An
officer who commits such offenses is wanting in some of the essential qualifications
for command, and it is to be regretted that a thorough investigation of this matter
was not made by putting Major Andrews on trial. (G. 0. No. 1, A. G. O., 1851.)
*An unauthorized absence from the quarters only, as from 11 p. in. inspection,
held not properly chargeable under the 32d Article. This article contemplates an
absence from the soldier's "troop, battery, company, or detachment" — an absence
from the post or command. Dig. Opin. J. A. G., par. 374.
Where an officer or soldier on his return from an unauthorized absence is, in con-
sequence of his report of the facts and circumstances of such absence, not proceeded
against by his proper commander for the military offense involved, but is by the
latter placed upon full duty, such action, under the general custom of the service, may
be pleaded as a good defence, if the officer or soldier be subsequently brought to
trial for the unauthorized absence. Ibid., par. 377.
An enlisted man forfeits his pay and allowances during the period of an absence
without leave, as provided in par. 144 A. R. During such absence he renders no
service and therefore earns neither pay nor allowances. The forfeiture is thus by
operation of law and accrues independently of the result of a trial for the military
offence involved in the unauthorized absence. One of the purposes of the muster
and pay rolls is to show what service the soldier renders, and if they show that he
has rendered none during a particular period by reason of an absence without leave,
he is not entitled to pay and allowances during such period. For an absence with-
out leave of less than a* day the soldier may of course be tried by court-martial and
sentenced to suffer a forfeiture, but such absence should not be noted on the muster
and pay rolls. Ibid., par. 378.
MILITARY LAWS OF THE UNITED STATES.
979
35 Art> War-
from the same, without leave from his commanding officer,
before he is dismissed or relieved, shall be punished as a
court-martial may direct.
ART. 34. Any soldier who is found one mile from camp, one mile from
... i 11 camp without
without leave in writing from his commanding officer, shall leave.
. _ _ . 3* Art* »Vfir»
be punished as a court-martial may direct.
ART. 35. Any soldier who fails to retire to his quarters
or tent at the beating of retreat shall be punished accord-
ing to the nature of his offense.
ART. 36. No soldier belonging to any regiment, troop,
battery, or company shall hire another to do his duty for
him, or be excused from duty, except in cases of sickness,
disability, or leave of absence. Every such soldier found
guilty of hiring his duty, and the person so hired to do
another's duty, shall be punished as a court-martial may
direct.
ART. 37. Every noncommissioned officer who connives
at such hiring of duty shall be reduced. Every officer who
knows and allows such practices shall be punished as a
court-martial may direct.
ART. 38. Any officer who is found drunk on his guard,
party, or other duty, shall be dismissed from the service. 80
Any soldier who so offends shall suffer such punishment as ^
a court-martial may direct. No court-martial shall sen-
tence any soldier to be branded, marked, or tattooed.1
at
37
t
Art* W
SuAnrt.0wa?.ty>
?' p873i8j
' °'
1 Held that a soldier found drunk when on duty was properly convicted under this
article, though his drunkenness actually commenced before he went on the duty, his
condition not being perceived till some time after he had entered upon the same.
While it is in itself an offense knowingly to allow a soldier to go on duty when under
the influence of intoxicating liquor, yet if a soldier is placed on duty while partially
under this influence, but without the fact being detected, and his drunkenness con-
tinues and is discovered while he remains upon the duty, he is strictly amenable
under this article, which prescribes not that the party shall become drunk, but that
he shall be "found drunk" on duty. fa) Dig. Opin. J. A. G., par. 43.
A charge of drunkenness on duty (drill) held not sustained where the party was
found drunk, not at or during the drill, but at the hour appointed for the drill, which
however, by reason of his drunkenness, he did not enter upon or attend. The charge
should properly have been laid under article 62. Ibid., par. 44.
An officer reporting in person drunk, upon his arrival at a post, to the commander
of which he had been ordered to report, held chargeable under this article. And so
held of an officer reporting, when drunk, to the post commander for orders as officer
of the day, after having been duly detailed as such. Ibid., par. 45.
But where an officer, after being specially ordered to remain with his company,
absented himself from it and from his duty, and while thus absent became and was
found drunk, held that he was not strictly chargeable with drunkenness on duty
under this article, but was properly chargeable with drunkenness in violation of the
Sixty-second article, disobedience of orders, and unauthorized absence. Ibid. , par. 46.
A post commander, while present and exercising command as such, is deemed to
a Note the emphatic order of the President in regard to violations of this article, published in G. O.
104, Headquarters of Army, 1877. See cases in G. O. 11, Department of Louisiana, 1869; G. C. M. O., 113,
Department of the Missouri, 1873.
980 MILITARY LAWS OF THE UNITED STATES.
in|e?npoL8leep" ART- 39- AnJ sentinel who is found sleeping upon his
39 Art. war. pOSt5 Or who leaves it before he is regularly relieved, shall
suffer death, or such other punishment as a court-martial
may direct.1
ete^wfffo'ut ART- 40- AnJ officer or soldier who quits his guard,
le406Art. war. P^toon, or division without leave from his superior offi-
cer, except in a case of urgent necessity, shall be punished
as a court-martial may direct.
fiArtfwar!' ART. 41. Any officer who, by any means whatsoever,
occasions false alarms in camp, garrison, or quarters shall
suffer death, or such other punishment as a court-martial
may direct.
be at all times on duty in the sense of this article, and thus liable to a charge under
the same if found drunk at the post, (a) Ibid., par. 47.
A medical officer of a post, where there are constantly sick persons under his charge
who may at any moment require his attendance, may, generally speaking, be deemed
to be "on duty," in the sense of the article, during the whole day, and not merely
during the hours regularly occupied by sick call, visiting the sick, or attending
hospital. If found drunk at any other hour he may, in general, be charged with an
offense under this article. Ibid. , par. 48.
The drunkenness need not be such as totally to incapacitate the party for the duty.
It is sufficient if it be such as to materially impair the full and free use of his mental
or physical abilities. (6) It is not a sufficient defense to a charge of drunkenness on
duty to show that the accused, though under the influence of liquor, contrived to
get through and somehow perform the duty. Ibid., par. 49. See also ibid., par. 50.
It is immaterial whether the drunkenness be voluntarily induced by spirituous
liquor or by opium or other intoxicating drug. In either case the offense may be
equally complete. (c) Ibid., par. 51.
Drunkenness not on duty, or when off duty, when amounting to a " disorder,"
should be charged under article 62, unless (in a case of an officer) committed under
such circumstances as to constitute an offense under article 61. Ibid., par. 52.
No p unishment except dismissal can legally be imposed upon an officer on a con-
viction of the offense made punishable by this article. A sentence imposing, with
dismissal, any further punishment, as imprisonment or forfeiture of pay, is, as to
such additional penalty, unauthorized and inoperative, and should so far be disap-
proved. Ibid., par. 53.
*It is no defense to a charge of " sleeping on post " that the accused had been pre-
viously overtasked by excessive guard duty;(d) or that an imperfect discipline
prevailed in the command and similar offenses had been allowed to pass without
notice; (e) or that the accused was irregularly or informally posted as a sentinel, (f)
Evidence of such circumstances, however, may in general be received in extenuation
of the offense, or, after sentence, may form the basis for a mitigation or partial
remission of the punishment, (g) An officer who places or continues a soldier on
duty as a sentinel when, from excessive fatigue, infirmity, or other disability, he is
incompetent to perform the important duties of such a position will ordinarily ren-
der himself liable to charges, (h) Ibid., par. 55.
a That the article is not limited in its application to mere duties of detail, but embraces all descrip
tions and occasions of duty, see the interpretation of the same as declared in G. 0. 7, War Department,
1856, and affirmed in G. 0. 5, ibid., 1857. The case in the latter order, indeed, Avas a case of drunken-
ness while on duty as a post commander. See another case of the same character in G. C. M. 0. 21,
Department of the Missouri, 1870, and the remarks of Major-General Schofield thereon, and compare
G. C. M. 0. 9, War Department, 1875.
6See G.C.M.O.33, War Department, 1875; also G. C. M. O.21, Department of the Missouri, 1870;
G. 0. 53, 98, Army of the Potomac, 1862; G. 0. 48, Department of Virginia and North Carolina, 1864;
G.O.33, Department of the Platte, 1871.
cSimmons, sec. 157; and see Hough (Precedents), 208; James's Precedents, 60.
dSee G. 0. 74, Army of the Potomac, 1862.
eG. O 74, Army of the Potomac, 1862.
/G. 0. 10, Middle Military Department, 1865; G. 0. 166, Department of the South, 1864.
g See G.0. 10, 62, Department of Virginia and North Carolina, 1863: G. 0. 2, Northern Department,
1865; G.O.67, Department of Washington, 1866; G.O.9, Department of the South, 1870; G.C.M.O. 44,
Department of Texas, 1875.
A See G. 0. 15, Army of the Potomac, 1861; G. 0. 62, Department of Virginia and North Carolina, 1863,
G. C. M, 0. 59, Department of Texas, 1872; G. C. M. 0. 80, Department of the Missouri, 1875.
MILITARY LAWS OF THE UNITED STATES.
981
g> cowar(iice.
42 Art- War>
43 Art- War-
44 Art- War-
^y ving the
46 Art- War-
ART. 42. Any officer or soldier who misbehaves himself
before the enemy, runs away, or shamefully abandons any
fort, post, or guard, which he is commanded to defend, or
speaks words inducing others to do the like, or casts
away his arms or ammunition, or quits his post or colors
to plunder or pillage, shall suffer death, or such other
punishment as a court-martial may direct.1
ART. 43. If any commander of any garrison, fortress, or
post is compelled, by the officers and soldiers under his
command, to give up to the enemy or to abandon it, the
officers or soldiers so offending shall suffer death, or such
other punishment as a court-martial may direct.
ART. 44. Any person belonging to the armies of the
United States who. makes known the watchword to any
person not entitled to receive it, according to the rules and
discipline of war, or presumes to give a parole or watch-
word different from that which he received, shall suffer
death, or such other punishment as a court-martial may
direct.
ART. 45. Whosoever relieves the enemy with money,
victuals, or ammunition, or knowingly harbors or protects
an enemy, shall suffer death, or such other punishment as
a court-martial may direct.2
1 Misbehavior before the enemy may be exhibited in the form of cowardice, or it
may consist in a willful violation of orders, gross negligence, or inefficiency, an act
of treason or treachery, etc. (a) It need not be committed in the actual sight of
the enemy, but the enemy must be in the neighborhood, and the act of offense have
relation to some movement or service directed against the enemy or. growing out of
a movement or operation on his part. It may be committed in an Indian war
equally as in a foreign or civil war. (6) Dig. Opin. J. A. G., par. 56.
The term "his arms or ammunition" does not refer to arms, etc., which are the
personal property of the soldier, but means such as have been furnished to him by
the proper officer for use in the service. (c) The term is to be construed in connec-
tion with the further similar expression "his post or colors." Ibid., par. 57.
2 In view of the general term of description in this and the succeeding article,
" whosoever," it was held, during the late war, by the Judge-Advocate-General and
by the Secretary of War, [d] and' has been held later by the Attornev-General, (e}
il~_i ,i__:ii ___ -"_ ___ 11 _ ___;Ii_ _ *I'A 11 , , • -i S • T_ A
mmshment
But the
code
enacted for the government of the military establishment, they relate only to per-
sons belonging to that establishment unless a different intent should be expressed or
a The phases which this offense may assume are well illustrated in cases published in the follow-
ing general orders: G. O. 5, War Department, 1857; G. O. 183, ibid., 1862; G. O. 18, 134, 146, 189, 204,
229, 282, 317, ibid., 1863; G. O. 27, 64, ibid., 1864; G. C. M. O. 90, 114, 272, 279, ibid., 1864; G. O. 53, 1, 107,
124, 126, 134, 191, 421, ibid., 1865.
6 See case in G. O. 5, War Department, 1857, in which a soldier was sentenced to be hung upon con-
viction of misbehavior before the enemy on the occasion of a fight with Indians.
cSee Samuel, 692; Hough, Practice, 336.
dSee G. O. 67, War Department, 1861; also the following orders of that Department publishing and
approving sentences of civilians tried and convicted under these articles: G. O 76 175 250, 371, of
1863; G. O. 51, of 1864; G. C. M. O. 106, 157, of 1864; G. C. M. O. 260, 671, of 1865
e XIII Opin. Attf. Gen., 472.
/Admitting this construction to be warranted so far as relates to acts committed on the theater of
war or within a district under martial law, it is to be noted that it is the effect of the leading ad-
judged cases to preclude the exercise of the military jurisdiction over this class of offenses when
committed by civilians in places not under military government or martial law. See, especially,
Ex parte Milligan, 4 Wallace, 121-123; Jones v. Seward., Barb., 563.
982 MILITARY LAWS OF THE UNITED STATES.
ART. 46. Whosoever holds correspondence with, or gives
46 Art. War. intelligence to, the enemy, either directly or indirectly^
shall suffer death, or such other punishment as a court-
martial may direct.1
47 A?t!0war. ART. 47. Any officer or soldier who, having received
is? vy IV^fs C Pay ' or havmg been duly enlisted in the service of the
United States, deserts the same, shall, in time of war, suf-
fer death, or such other punishment as a court-martial may
direct; and in time of peace, any punishment, excepting
death, which a court-martial may direct.2
otherwise made manifest. No such intent is so expressed or made manifest. Per-
sons not belonging to the military establishment may be proceeded against for the
acts mentioned in the article, but it is by virtue of the power of another jurisdiction,
namely, martial law; and martial law does not owe its existence to legislation, but
to necessity. The scope of these articles under the legislation of 1776, apparently
extending their application to civilians, seems to have become modified on the
adoption of the Constitution. Ibid., par. 58, note 5.
During the late war all inhabitants of insurrectionary States were prima facie ene-
mies in the sense of this and the succeeding article, (a) A citizen of an insurgent
State who entered the United States military service became of course no longer an
enemy. So held of a lieutenant of the First East Tennessee Cavalry. Ibid., par. 59.
For a case in which a citizen of Maryland was convicted of relieving the enemy in
violation of this article, see G. O. 76, A. G. O., of 1863.
It is no less a relieving an enemy under this article that the money, etc. , furnished
is exchanged for some commodity, as cotton, valuable to the other party. Dig. Opin.
J. A. G., par. 60.
The act of "releiving the enemy" contemplated by this article is distinguished
from that of trading with the enemy in violation of the laws of war, the former
being restricted to certain particular forms of relief, while the latter includes every
kind of commercial intercourse not expressly authorized by the Government. Ibid. ,
par. 61.
1 Held that the offense of holding correspondence with the enemy was completed
by writing and putting in progress a letter to an inhabitant of an insurrectionary State
during the late war, it not being deemed essential to this offense that the letter should
reach its destination. (6) Ibid., par. 62.
It is essential, however, to the offense of giving intelligence to the enemy that
material information should actually be communicated to him; the communication
may be verbal, in writing, or by signals. Ibid., par. 63.
2 Desertion is an unauthorized absenting of himself from the military service, by an
officer or soldier, with the intention of not returning. In other words, it is the viola-
tion of military discipline familiarly known as absence without leave (whether con-
sisting in an original absenting without authority, or in an overstaying of a defined
leave of absence) accompanied by an animus manendi, or non revertendi; this ani-
mus constituting the gist of the offense. In order to establish the commission of the
specific offense, both these elements — the fact of the unauthorized voluntary with-
drawal, and the intent permanently to abandon the service — must be proved. The
intent may be inferred, not indeed from the fact of absenting alone, but from the
circumstances attending this fact, and here the duration of the absence is especially
material. Thus the circumstance that the absence has been exceptionally protracted
and quite unexplained will, in general, furnish a presumption of the existence of the
necessary intent. An unauthorized absence, however, of a few hours, terminated by
a forcible apprehension, may, under certain situations, be sufficient evidence of such
intent and thus proof of a desertion; wrhile an absence for a considerable interval,
a See the opinion of the United States Supreme Court (frequently since reiterated in substance) as
given by Grier, J., in the " Prize Cases," 2 Black, 666 (1862); and by Chase, C. J., in the cases of Mrs.
Alexander's Cotton and The Venice, 2 Wallace, 274, 418 (1864). In the latter case the Chief Justice
observes: " The rule which declares that war makes all the citizens or subjects of one belligerent
enemies of the Government and of all the citizens o r subjects of the other, applies equally to civil
and to international wars." That an insurrectionary State was no less " enemy's country," though
in the military occupation of the United States, with a military governor appointed by the President,
see opinion by Field, J., in Coleman v. Tennessee, 7 Otto, 516, 517.
6 Compare Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel, 580.
MILITARY LAWS OF THE UNITED STATES. 983
unattended by circumstances indicating a purpose to separate permanently from the
service, or to dissolve the pending engagement of the soldier, may be proof simply
of the minor included offense. In order to determine whether or not the officer or
soldier absented himself with the intent not to return, i. e., whether his offense was
desertion or absence without leave, all the circumstances connected with his leaving,
absence, and return (whether compulsory or voluntary) must be considered together.
Each case must be governed by its own peculiar facts, and no general rule on the
subject can be laid down. Ibid., par. 1053.
That a soldier has been charged With a desertion is no evidence that he has com-
mitted the offense. Thus, held that the mere fact that a soldier, absent without
authority, had been arrested and returned to his regiment as a deserter, was 110 proof
whatever of the offense charged. So, held that a mere entry on a morning report
book, descriptive roll, or other official statement or return that a soldier deserted on
a certain day was not legal evidence of a desertion by him, but was evidence only
that he had been charged with desertion, (a) So, a report from the Adjutant-General's
Office containing extracts from the muster rolls of a regiment on which a soldier of
the same was noted as having deserted on a certain date, held incompetent evidence
of the fact of desertion upon the trial of the soldier for that offense. (6) Similarly
held that the mere statement of a first sergeant, given as testimony on the trial of a
soldier of his company charged with desertion, that the accused "deserted" at a
certain time and place, was insufficient as proof of the offense charged, being, indeed,
but an assertion of a conclusion of law. In such cases it is for the witness simply to
state the facts and circumstances, so far as known to him, attending the act charged,
it being the province of the court alone to arrive at the conclusion that the offense
has been committed. To convict a deserter upon an accusation merely, however
formally and officially the same may be made, would be as unwarranted in law as it
would be unjust in fact. Ibid., par. 1056.
The nature of the offense of desertion is well illustrated in cases of escape. The
mere fact that a soldier while awaiting trial or sentence, or while under sentence (and
not discharged from the service), escapes from his confinement is not proof of a
desertion on his part, since he may have had in view some minor object, such as the
procuring of liquor, etc.(c) But an escape, followed by a considerable absence,
especially if the soldier is obliged to be forcibly apprehended, is strong presumptive
evidence of the existence of the intent necessary to constitute the crime. So, though
the absence involved may be comparatively brief, the circumstances accompanying
the escape or attending the apprehension may be such as to justify an equally strong
presumption. An escape, with intent not only to evade confinement, but to quit the
service, while the party is held awaiting proceedings for desertion, is of course a
second or additional desertion.
As to the nature of the offense which may be involved, there is properly no sub-
stantial distinction between an escape while awaiting trial or sentence and an escape
while in confinement under sentence. An escape, indeed, from an imprisonment
imposed by sentence would probably be more likely to be characterized by an animus
non revertendi than an escape from a merely preliminary confinement in arrest. So
an escape from confinement while awaiting trial upon a grave charge, which must
entail, upon conviction, a severe punishment, would naturally be more generally so
characterized than an escape from an arrest upon a charge of inferior consequence.
Undoubtedly, in the great majority of cases, escape is desertion; the precedents,
however, show that it is not necessarily so, and upon the mere fact arone that a
soldier has liberated himself from military custody it is not just to convict him of
having designed to dissolve his contract and permanently abandon the military serv-
ice. Of course, an escape from legal military custody is always an offense, and the
soldier who has escaped may (where his act does not amount to a desertion) be
brought to trial for such offense as "conduct to the prejudice of good order and mili-
itary discipline."
It need hardly be added that an escape from imprisonment under sentence, effected
by a party who has been dishonorably discharged under the same sentence, can not
constitute a desertion or other offense, the party at the time of escape being no
longer in the military service. Ibid., par. 1057.
Held to be no defense to a charge of desertion that the accused, at the time of the
a Compare G. C. M. O., 33, Department of the Missouri, 1875.
& Compare Hanson v. S. Scituate, 115 Mass., 336.
cSee a case of this nature (an escaping in order to obtain liquor) in G. 0., 32, Department of the
South, 1873; and compare the case in G. O., 87, Department of the South, 1872, in which a conviction
of desertion is disapproved on the ground that the evidence showed "merely an escape from the
guardhouse, without intention to leave the service or the vicinity of the post." And see in this con-
nection .Samuel, 324, where to be "discovered," after a short absence, "in the pursuit of some acci-
dental temporary object, though perhaps otherwise illicit," is instanced as not indicating an intent,
by the offender, "to sever himself from the service."
984 MILITARY LAWS OF THE UNITED STATES.
enlistment which he is charged with having abandoned, was an unapprehended
deserter from the Army, an enlistment of a deserter being not void but voidable only.
Ibid., par. 1058.
It is no defense to a charge of desertion that the soldier was induced to abandon
the service by reason of ill treatment, want of proper food, etc. ; such circumstances
can only palliate, not excuse, the offense committed. So, in a case of a Swiss, who,
having enlisted in our Army, deserted after two years of service, held that it was no
defense (though, under the circumstances, matter of extenuation) that his act had
been induced by an intense nostalgia or maladie du pays. So, held, in a case of a
desertion by a German, that the fact that he had received a notification from the
military authorities of the North German Empire to report at home for military
duty under the penalty of being considered as a deserter from the German army
constituted no defense to a desertion committed by him from our service, (a) Ibid.,
par. 1059.
It is, however, a complete answer to a charge of desertion before a court-martial
that the accused has previously been "restored to duty without trial," as sanctioned
by paragraph 143, Army Regulations of 1901, provided he has been so restored by
competent authority, i. e., the commander who would have been authorized to con-
vene a general court for his trial; otherwise, however, when so restored by a superior
not duly authorized. Ibid., par. 1060.
REWARDS.
The reward of $30 made payable by paragraph 135, Army Regulations, is not due
merely on the apprehension of a deserter; he must also be delivered "to the proper
military authority at a military station, or at some convenient point as near thereto as
can be agreed upon." (6) The fact of the offer of a reward for the arrest of a deserter
does not authorize a breach of the peace or commission of an illegal act in making
the arrest. (c) Ibid., par. 1071.
The amount of the reward— to cite from G. O., 325, of 1863— is in full "for all
expenses incurred in apprehending, securing, and delivering a deserter. " Disburse-
ments made by a civilian, where no arrest is effected, are at his own risk, and can
not legally be reimbursed by the military authorities. Ibid. , par. 1072.
The legal liability imposed upon the soldier by paragraph 137, Army Regulations,
to have the amount of the award stopped against his pay, is quite independent of
the punishment which may be imposed upon him by sentence of court-martial on
conviction of the desertion. Such stoppage is incident upon the conviction (d) and
need not be directed in the sentence; courts-martial, indeed, have sometimes assumed
to impose it, like an ordinary forfeiture of pay, but its insertion in the sentence adds
nothing to its legal effect. Ibid., par. 1073.
Where a soldier, charged with desertion, is acquitted, or where, if convicted, his
conviction is disapproved by the competent reviewing authority, he can not legally
be made liable for the amount of a reward paid or payable for his arrest as a deserter,
since in such cases he is not a deserter in law. Ibid., par. 1074.
Where a soldier for whose apprehension as a supposed deserter the legal reward
has been paid is subsequently brought to trial upon a charge of desertion and is
found guilty not of desertion, but only of the lesser and distinct offense of absence
without leave, he clearly can not legally be held liable for the reward by a stoppage
of the amount against nis pay. In such a case the instrumentality resorted to by
the United States for determining the nature of his offense — the court-martial — hav-
ing pronounced that it was not desertion, the Government is bound by the result,
and to visit upon him a penalty to which a deserter only can be subject would be
grossly arbitrary and wholly unauthorized. Moreover, such action would be directly
a As to the principle of the right of expatriation, as asserted in our public law, see section 1999,
Revised Statutes.
b The actual payment of the compensation in such cases is authorized by the annual Army appro-
priation acts, which, in appropriating for the incidental expenses of the Quartermaster's Department,
include as an item " for the apprehension, securing, and delivering of deserters, and the expenses
incident to their pursuit."
cSee, in this connection, Clay v. United States, Devereux, 25, in which an officer who, under the
orders of a superior, had, without previously procuring proper authority to enter and search from a
civil magistrate, broke into a dwelling house for the purpose of securing the arrest of certain desert-
ers, was held to have committed an unjustifiable trespass, and his claim to be reimbursed by the
United States for the amount of a judgment recovered against him on account of his illegal act was
disallowed by the Courtof Claims. Held by the Attorney-General October 12, 1894 (confirming the views
of the Judge- Advocate-General), " that the right to forcibly enter into private houses, as asserted by
Adjutant-General's circular No. 6, of 1885, does not exist." And see par. 2 of Circ. No. 12, H. Q. A.,
1894, revoking Circ. No. 6, of 1885.
dSee. to a similar effect, the recent opinion of the Attorney-General referred to in the next note.
MILITARY LAWS OF THE UNITED STATES. 985
at variance with the terms of paragraph 124 of the Army Regulations, which fixes
such liability upon the soldier tried in the event only of his conviction of desertion, (a)
unless, indeed, the sentence of the court expressly forfeits the amount. (6) Ibid.,
par. 1075.
Where a civil official, having made an arrest of a deserter, concealed him from the
military authorities and afterwards permitted or connived at his escape, recom-
mended that the Attorney-General be requested to instruct the proper United States
district attorney to initiate proceedings under section 5455, Revised Statutes. Ibid.,
1092.
To entitle a person (under paragraph 135, Army Regulations of 1901) to the reward
for the arrest of a deserter ( c ) the party arrested must be still a soldier. Though at the
time of the arrest the period of his term of enlistment may have expired, or he may
be under sentence of dishonorable discharge, yet if he has not been discharged in fact,
the official duly making the arrest, etc., on account of a desertion committed before
the end of his term becomes entitled to the payment of the reward specified in the
regulations. Similarly held, where the soldier, arrested when at large as a deserter,
had been sentenced to confinement (without discharge) and had escaped therefrom.
Ibid., par. 1076.
The soldier arrested must be a deserter and legally liable as such. If he has been
judicially determined to be not a deserter, as where he has been convicted of absence
without leave only, or if, in view of the limitation of the one hundred and third arti-
cle, he has a legaldefense to a prosecution for desertion, the reward is not payable
for his apprehension. Ibid., par. 1077.
Where the soldier when arrested had been absent but three days, and was still in
uniform, and had not been reported or dropped as a deserter, and his company com-
mander had not the " conclusive evidence " of his "intention not to return," referred
to in paragraph 132, Army Regulations of 1889 (p. 133 of 1895, 144 of 1901), held that
there was not sufficient evidence that he was a deserter to justify the payment of the
reward for his arrest and delivery. Ibid., par. 1078.
The arrest made must be a legal one. Thus held that the reward was not payable
for an arrest made on the soil of Mexico, involving a violation of the territorial rights
of that sovereignty. An act done in violation of law can not be the basis of a legal
claim. Ibid., par. 1080.
Where the deserter was not arrested by, but surrendered himself to, the civil offi-
cial, who in good faith took him into custody and securely held and duly delivered
him, advised that there had been a substantial apprehension (for the purpose of
reward) and that the reward was properly payable. Ibid., par. 1081.
The delivery should be personal and manual on the part of the civil official. Where
a soldier who had deserted was sentenced to a % penitentiary as a horse thief, and at
the end of his term of imprisonment a United States marshal caused information that
he was a deserter to be conveyed to the commander of a neighboring military post,
who thereupon had him airested and brought to the post, held that the marshal was
not entitled to claim the reward. Ibid., par. 1082.
So, where a civil official merely informed a captain of artillery that two soldiers
serving in his battery were deserters from the battalion of engineers, held that, though
such information was correct, the official was not entitled to the reward; and that
the amount of the same, which had been erroneously paid him on the certificate of
the captain, should be charged against the latter under paragraph 736, Army Regu-
lations of 1901. Ibid., par. 1083.
The reward should be withheld where there is evidence of collusion between the
alleged deserter and the civil official. Advised that a suspicion of such collusion was
properly entertained in a case where the soldier, after an absence of but a few days,
voluntarily surrendered himself, at or near the post of delivery, to a policeman,
who turned him over, without expense or difficulty, to the military authorities, who
did not treat him as a deserter, but caused him to be charged, tried, and convicted
as an absentee without leave only. Ibid., par. 1086.
An officer of the customs, empowered by law to make arrests of persons violating
the revenue laws, but having no such general authority as is ordinarily possessed by
peace officers "to arrest offenders" (according to the terms of the act of October 1,
1890, authorizing certain civil officials to arrest- deserters), held not entitled to be
paid the regulation reward for the apprehension, etc., of a deserter from the Army.
Ibid., par. 1087.
Held that a justice of the peace of Idaho was not, by the laws of that State, a peace
a This conclusion was concurred in by the Attorney-General in XVI Opins., 474.
6 SeeG.O.,38, of 1890.
c The Army Regulations, so far as it fixes the amount of the "reward," has been superseded by
the provision of the recent Army appropriation acts of August 6, 1894, and February 12, 1895, to the
effect that the sum paid shall not be "greater than ten dollars."
986 MILITARY LAWS OF THE UNITED STATES.
ART- 48- Every soldier who deserts the service of the
. United States shall be liable to serve for such period as
o/ie^'S'. 8^^ w*tn *^e time ne may nave served previous to his
p<478Art. war. desertion, amount to the full term of his enlistment; and
officer or authorized to arrest offenders, and was therefore not within the terms of
the act of October 1, 1890, or legally entitled to be paid the reward for the arrest,
etc., of a deserter. Such justice may by his warrant authorize and thus cause arrests,
but actual arrests pertains, under the laws of the State, to another class — sheriffs,
constables, city mashals, and policemen. Similarly held in regard to an Indian who
brought in a deserter to a military post in North Dakota, he having no authority
under the laws of that State to make arrests. But held that a member of the Indian
police, established under the regulations of the Indian Office, was a civil officer hav-
ing authority to arrest offenders, and was entitled to the reward for the arrest of a
deserter. [See Circular No. 12 (H. A.), 1894.] Ibid., par. 1088.
. Circular No. 11 (H. A.), 1883, declares that the reward shall not be paid where the
deserter, at the time of arrest, "is serving in some other branch of the Army," etc.
Thus held that the reward was not payable for the arrest of a deserter from the cav-
alry who, subsequently to his desertion, had enlisted in an infantry regiment, in which
he was serving at the date of the arrest. Ibid., par. 1091.
A deserter is not chargeable, under paragraph 137, Army Regulations of 1901,
with the expenses of transportation therein specified, if his conviction has been duly
disapproved, such disapproval being tantamount to an acquittal. Ibid., par. 1065.
The expense of the transportation of a convicted deserter, incurred in the course of
the execution of his sentence, is not chargeable against the deserter under paragraph
137, Army Regulations of 1901, but must be borne by the United States. Ibid.,
par. 1068.
Every desertion includes an absence without leave. Upon a trial for desertion
the accused is tried also for the absence without leave involved in the offense
charged, (a) If acquitted, without reservation, of the desertion, he is acquitted also
of the lesser offense. If convicted, as he may be (see FINDING, section 8), of the lesser
offense only, under a charge of the greater, he is acquitted in law of the latter.
Ibid., par. 1093.
The right of the United States to arrest and bring to trial a deserter is paramount
to any right of control over him by a parent on the ground of his minority. (6)
Ibid., par. 1094.
Enlisting in the enemy's army by prisoner of war is desertion, unless submitted
to as a last resort to save life or escape extreme suffering, or to obtain freedom. Thus,
held in a case of a United States soldier who entered the service of the enemy from
Andersonville, Ga., in the late war, that the burden of pr,oof was on him to establish
that he resorted to such enlistment with design of effecting his escape and rejoining
his own army; and that his abandoning such enlistment and coming within our lines
at the first opportunity was material evidence of such a design. Ibid., par. 1095.
A soldier who had been extradited from Mexico solely on a charge of theft, held
not liable to trial as a deserter; the principle that a person extradited on account of
a certain alleged offense is exempt from trial on any other criminal offense (c) being
deemed applicable where the other offense is a military one. A deserter from
our Army can not, in the absence of any international convention allowing it,
legally be arrested as such in Mexico and brought thence into Texas. Ibid., par.
1096.
The amenability to trial of a deserter from an enlistment in the Army is not
affected by the fact that when he enlisted he was a deserter from the Marine Corps.
Ibid., par. 1097.
Held that a deserter from a volunteer regiment was, after the disbandment of the
Volunteer Army, no longer amenable to the military jurisdiction, having become
thereupon a civilian. Ibid., par. 1098.
A civil employee of the Quartermaster Department does not become liable as a
deserter by abandoning his employment. Ibid., par. 1099.
The fact that a soldier has been dropped from the rolls as a deserter is not legal
evidence to prove the fact of desertion on a trial for that offense. Ibid. , par. 1056.
a See XIII Opins. Att. Gen., 460.
&In re Cosenow, ?7 Fed., 668; In re Kaufman, 41 Fed., 876. And compare In re Morrissey, 137
U. S., 157.
cU. S. v. Rauscher, 119 U. S., 407.
MILITARY LAWS OF THE UNITED STATES. 987
such soldier shall be tried by a court-martial and punished,
although the term of his enlistment may have elapsed pre-
vious to his being apprehended and tried.1
ART. 49. Any officer who, having tendered his resigna-2 t y^p'afe.'8'
tion, quits his post or proper duties, without leave and 49 Art- War-
with intent to remain permanently absent therefrom, prior
to due notice of the acceptance of the same, shall be
deemed and punished as a deserter.
ART. 50. No noncommissioned officer or soldier shall other
enlist himself in any other regiment, troop, or%company ^ge0"1
without a regular discharge from the regiment, troop, or '
company in which he last served, on a penalty of being
reputed a deserter and suffering accordingly.2 And in case
1 The liability to make good to the United States the time lost by desertion,
enjoined by the first clause of this article, is independent of any punishment which
may be imposed by a court-martial, on conviction of the offense, it need not, there-
fore, be adjudged or mentioned in terms in a sentence, (a) If the conviction is disap-
proved, the legal status of the accused is the same as if he had been acquitted, and
the obligation of additional service is of course not incurred. Ibid., par. 64.
Where a deserter was sentenced to imprisonment for the "balance of his term,"
held that he was not absolved from the obligation to make good time lost; these
works referring to the balance of the term of his original enlistment. Ibid., par. 65.
The time passed by a deserter in confinement under sentence can not be computed
as a part of the period required by the article to be made good to the United States,
such time not being a time of military service, but of punishment. Nor can the
period of confinement be credited where the sentence is remitted before it is fully
executed. So time passed by the deserter in' arrest or confinement (or in hospital) ,
while waiting trial or action upon his sentence, can not be computed. Ibid., par. 66.
The enforcement of the liability, where enforced at all, is generally postponed till
after the execution of the punishment (if any) imposed upon the deserter by his sen-
tence. A deserter may still be required to make good the time included in his unau-
thorized absence from the service, although his term of enlistment has expired
pending a term of confinement adjudged him by court-martial on conviction of his
offense, provided he has not been discharged. Ibid., par. 67.
The United States may waive the liability imposed by the first clause of the arti-
cle. It is, in fact, waived where the deserter, without being required to perform the
service, is discharged by one of the officials authorized by article 4 to discharge sol-
diers. So it is waived where the soldier is adjudged to be dishonorably discharged
by sentence of court-martial and this punishment is duly approved and thereupon
executed. Ibid., par. 68.
The liability to trial and punishment imposed by the second clause of the article
is subject to the limitation of prosecutions prescribed by article 103. Ibid., par. 69.
The contract of enlistment is for military service for a term of years, and when
interrupted by the soldier's desertion remains incomplete and subject to specific per-
formance. While some authorities hold that the obligation to make good time lostf
by desertion attaches only upon conviction, the weight of authority and the practice
are to the effect that the punishment for desertion and the obligation to complete
the contract of enlistment are separate and distinct, and that the restoration of a
deserter to duty without trial does not relieve him from the obligation to complete
his contract. This obligation continues, though the statute of limitation has taken
effect in his case or has been successfully pleaded in bar on a trial by court-martial.
Ibid., par. 70.
2 This article, in its first clause, does not create a specific offense, or particular kind
of desertion, or an offense distinct from the desertion made punishable in the forty-
seventh article, but declares in effect that a soldier who "abandons his regiment shall
be deemed none the less a deserter although he may forthwith reenlist in a new regi-
aSee G. O. 21, Department of the Lakes, 1873; G. O. 94, Department of the Missouri, 1867; G. C.M. O.
74, Department of the East, 1873. The old ruling contra (see G. O. 26, 45, Headquarters of Army, 1843)
may be regarded as abandoned in our law and practice.
988 MILITARY LAWS OF THE UNITED STATES.
any officer shall knowingly receive and entertain such non-
commissioned officer or soldier, or shall not, after his being
discovered to be a deserter, immediately confine him and
give notice thereof to the corps in which he last served,
the said officer shall, by a court-martial, be cashiered.
^Advising to de- ART. 51. Any officer or soldier who advises or persuades
May 29* 1830* c anJ otner officer or soldier to desert the service of the
iss, v. 4, p. 418. United States, shall, in time of war, suffer death, or such
other punishment as a court-martial may direct; and in
time of jpeace, any punishment excepting death which a
court-martial may direct.1
Misconduct at ART. 52. It is earnestly recommended to all officers and
divine service. .
52 Art. war. soldiers diligently to attend divine service. Any officer
who behaves indecently or irreverently at any place of
divine worship shall be brought before a general court-
martial, there to be publicly and severely reprimanded by
the president thereof. Any soldier who so offends shall,
for his first offense, forfeit one-sixth of a dollar; for each
further offense he shall forfeit a like sum, and shall be con-
fined twenty-f our hours. The money so forfeited shall be
deducted from his next pay, and shall be applied, by the
ment. It does hot render the act of reenlistment a desertion, but simply makes the
reenlistment, under the circumstances indicated, prima facie evidence of a desertion
from the previous enlistment from which the soldier has not been discharged, or,
more accurately, evidence of an intent not to return to the same, (a) The object of
the provision, as it originally appears in the British code, apparently was to preclude
the notion, that might otherwise have been entertained, that a soldier would be
excused from repudiating or departing from his original contract of enlistment pro-
vided he presently renewed his obligation in a different portion of the military
force. (6) Ibid., par. 73.
Held, that an enlisted marine, who abandoned the Marine Corps without a dis-
charge and enlisted in the Army, could not be "reputed a deserter" according to
the terms of this article; but advised that he be turned over to the commandant of
that corps for the proper disposition and action. Ibid., par. 74.
Where a soldier enlisted in a certain regiment, after being officially notified that
he was duly discharged from a previous enlistment, but without having received the
written certificate and evidence of his discharge, which, by mistake or accident, had
not been delivered to him as required by article 4, held, that he could not properly
be " reputed" or charged as a deserter. Ibid., par. 75.
An enlistment in violation of this article is not void but voidable at the option of
the United States only. Until so avoided service under it is valid service. On a
trial for an offense committed during such enlistment, a plea by the accused, in bar
of trial, that this enlistment, being fraudulent on his part, is void, should not be sus-
tained. Ibid., par. 76.
1 A declaration, made by one soldier to another, of a willingness to desert with him
in case he should decide to desert, held not properly an advising to desert, in the
sense of this article. To constitute the offense of advising to desert, it is not essen-
tial that there should have been an actual desertion by the party advised. But held
otherwise as to the offense of persuading to desert; to complete this offense the per-
suasion should have induced the act. (c) Dig. Opin. J. A. G., par. 77.
a See the similar view expressed m G. C. M. O. 129, Department of the Missouri, 1872; G. C. M. O.
77, ibid., 1874.
6 See Samuel, 330, 331.
c Compare Hough (Practice), 172, and cases in G. O. 23, Department of the Missouri, 1862; G. C. M.
O. 11, 152, ibid., 1868.
MILITARY LAWS OF THE UNITED STATES. 989
captain or senior officer of his troop, battery, or company,
to the use of the sick soldiers of the same.
ART. 53. Any officer who uses any profane oath or exe-
cration shall, for each offense, forfeit and pay one dollar.
Any soldier who so offends shall incur the penalties pro-
vided in the preceding article; and all moneys forfeited
for such offenses shall be applied as therein provided.
ART. 54. Every officer commanding- in quarters, garri-
son, or on the march shall keep good order, and, to the
utmost of his power, redress all abuses or disorders which
may be committed by any officer or soldier under his com-
mand; and if, upon complaint made to him of officers or
soldiers beating or otherwise ill treating any person, dis-
turbing fairs or markets, or committing any kind of riot,
to the disquieting of the citizens of the United States, he
refuses or omits to see justice done to the offender and
reparation made to the party injured, so far as part of the
offender's pay shall go toward such reparation, he shall be
dismissed from the service, or otherwise punished, as a
court-martial may direct.1
1 While this article would certainly appear to contemplate the making of reparation
for injuries done to the persons of citizens ratherthan forinjuries done to their property,
yet advised, in view of the precedents, that it might properly be regarded as within
the equity of the article to indemnify a citizen for wanton injury done to his property
by a soldier or soldiers, by means of a stoppage against his or their pay, summarily
ordered upon investigation by the commanding officer, (a) In a few cases a stoppage
of the pay of an entire regiment, for damage to private property committed by its
members, has been sanctioned as authorized under the general remedial provisions
of this article. Dig. Opin. J. A. G., par. 78.
The stoppage contemplated is quite distinct from a punishment by fine, and it can
not affect the question of the summary reparation authorized by the article, that the
offender or offenders may have already been tried for the offense and sentenced to
forfeiture of pay. In such a case, indeed, the forfeiture, as to its execution, would
properly take precedence of the stoppage. On the other hand, where the stoppage
is first duly ordered under the article, it has precedence over a forfeiture subsequently
adjudged for the offense. Ibid., par., 79.
It does not affect the question of reparation under the article that the offender or
offenders may be criminally liable for the injury committed or may have been pun-
ished therefor by the civil authorities. Ibid., 47, par. 80.
Held that the remedial provision of this article could not be enforced in favor of
military persons, or in favor of the United States, or to indemnify parties for property
stolen or embezzled. Ibid., par. 81.
The pay of the offender or offenders can be resorted to only for the purpose of the
"reparation." A military commander can have no authority to add a further
amount of stoppage by way of punishment. Ibid. , par. 82.
Held that, as an agency for assessing the amount of the damage, a court-martial
could not properly be substituted for the board directed by General Orders 35, Head-
quarters of the Army, 1868, to be convened for such purpose. Ibid., par. 83.
The procedure under this article, and pursuant to General Orders 35 of 1868, is as
a See G. O. 35, Headquarters of Army, 1868, construing this article, and prescribing the proceeding
under it, reparation for injury to property as well as person being authorized. The article, however,
is antiquated in form and indefinite and incomplete in its provisions, and calls for repeal or amend-
ment. For some of the principal cases in which it has been applied in our practice, the student is
referred to G. O. 4, Department of the Ohio, 1863; G. O. 123, Department of the Gulf 1864; G. 0. 161,
Department of Washingt9n, 1865; G. O. 59, ibid., 1866; G. O. 74, Department of Arkansas, 1865; G. O.
48, 55, Department of Louisiana, 1866; G. O. 6, Department of the Cumberland, 1867: G. 0. 10, Depart-
ment of the South, 1870.
990 . MILITARY LAWS OF THE UNITED STATES.
ART- 55- A11 officers and soldiers are to behave them
outo0r^eerrsywith"se^ves orderly in quarters and on the march; and whoever
66 Art. of war. commits any waste or spoil, either in walks or trees, parks,
warrens, fish-ponds, houses, gardens, grain-fields, inclos-
ures, or meadows, or maliciously destroys any property
whatsoever belonging to inhabitants of the United States
(unless by order of a general officer commanding a sepa-
rate army in the field), shall, besides such penalties as he
may be liable to by law, be punished as a court-martial may
direct.
pereonsbdSJ^ ART. 5*>. Any omcer or soldier who does violence to any
pr56Art?ofWar. Person bringing provisions or other necessaries to the
camp, garrison, or quarters of the forces of the United
States in foreign parts, shall suffer death, or such other
punishment as a court-martial may direct.
gua?dcingasafe" ART- 5^- Whosoever, belonging to the armies of the
Fe£ri3°i862*c! United States in foreign parts, or at any place within
?; the United States or their Territories during rebellion
2573-'jui5y3i lie?' against the supreme authority of the United States, forces
C.32)v.i2,p.284:a safeguard, shall suffer death.
durfngrebeiiion8 ART. 58. In time of war, insurrection, or rebellion, lar-
75Msar3o8>v18i2; p. cenJ 5 robbery, burglary , arson, mayhem, manslaughter,
c363;,JsU^ v3'i286p! mur^ei% assault and battery with an intent to kill, wound-
^a^I^ViS! mg> by shooting or stabbing, with an intent to commit
08 Art-ofWar- murder, rape, or assault and battery with an intent to
commit rape, shall be punishable by the sentence of a
general court-martial, when committed by persons in the
military service of the United States, and the punishment
in any such case shall not be less than the punishment
provided, for the like offense, by the laws of the State,
follows: The citizen aggrieved tenders a "complaint" under oath charging the injury
against a particular soldier or soldiers, described byjiame (if known) , regiment, etc. ,
and accompanied by evidence of the injury, and of the instrumentality of the person
or persons accused. If such evidence be satisfactory, the commanding officer has
the damages assessed by a board, and makes orders for such stoppage of pay as will
be sufficient for the "reparation" enjoined by the article. The commander must
have a proper case presented to him; he can not legally proceed sua sponte. Ibid.,
par. 84.
Where proof was duly made under this article of injury done by some persons of a
command, but the active perpetrators could not upon . investigation be determined,
and it appeared that the entire command was present and implicated, held that the
stoppage might legally be made against all the individuals present. Ibid., par. 85.
It would not be a sound construction of the article to extend the specified measure
of redress to other than the specified cases. Its strict construction would indeed
limit the specific redress to acts of violence against the person, but the weight of
American authority extends it to acts of violence against property afso. Further
than this the authorities do not go, holding, for example, that it is not applicable to
cases of larceny and embezzlement. Therefore held that to make a stoppage of pay
against enlisted men to reimburse the keeper of a restaurant for food ordered by them
and not paid for would be wholly unauthorized by the terms, scope, or intent of the
article. Ibid., par. 86.
MILITARY LAWS OF ,THE UNITED STATES. 991
Territory, or district in which such offense may have
been committed.1
ART. 59. When any officer or soldier is accused of a capi-
tal crime, or of any offense against the person or property
of any citizen of any of the United States, which is pun-
ishable by the laws of the land, the commanding officer,
and the officers of the regiment, troop, battery, company,
or detachment, to which the person so accused belongs, are
required, except in time of war, upon application duly
made by or in behalf of the party injured, to use their
utmost endeavors to deliver him over to the civil mais~ e °iSfl
trate, and to aid the officers of justice in apprehending and
securing him, in order to bring him to trial. If, upon such 69 Art. of war.
application, any officer refuses or willfully neglects, except
in time of war, to deliver over such accused person to the
civil magistrates, or to aid the officers of justice in appre-
hending him, he shall be dismissed from the service.2
1 The jurisdiction conferred by this article upon military courts has been held by
the highest judicial authority to be not exclusive, but concurrent merely with that
of the civil tribunals, (a) The word "shall" in the term "shall be punishable" is
construed as equivalent to "may." (6) (Dig. Opin. J. A. G., par. 87.)
In framing a charge under this article it will not in general be essential to allege
in connection with the date of the offense or to show by evidence that the act was
committed at a time of war, etc. , this being a fact of which a court will ordinarily
properly take judicial notice, (c) Ibid., par. 88.
Held (November, 1865) that military courts were still empowered to exercise the
jurisdiction conferred by this article, the status belli not having yet been declared to
be terminated, either by the Executive or Congress. A court-martial, of course,
could have no authority whatever to decide whether the war was ended. (Ibid.,
par. 89.)
When a sentence adjudged by a court convened by the authority of this article
imposed a punishment of less severity than that provided for the same offense by the
law of the State in which the offense was committed (as imprisonment where the law
of the State required the death penalty), held that such a sentence was unauthorized
and inoperative. But though the punishment must not be "less," it may legally be
of greater severity than that provided by the local statute. Held that the court, in
imposing punishment, should be governed by the local law (so far as required by the
article) , although the offense was committed in a State whose ordinary relations to
the General Government had been suspended by a state of war or insurrection. (d)
Ibid., par. 90. See also paragraphs 91-93, ibid.
2 This article is a recognition of the general principle of the subordination of the
military to the civil power, (e) and its main purpose evidently is to facilitate, in cases
of offenders against the local civil statutes who happen to be connected with the
Army, the execution of those statutes, where, as citizens, such persons remain legally
amenable to arrest and trial thereunder. Protection of military persons from civil
arrest is not the object of this article. (Ibid., par. 94. )
The commanding officer, before surrendering the party, is entitled to require that
the "application" shall be so specific as to identify the accused and to show that he
is charged with a particular crime or offense which is within the class described in
the article. Where it is doubtful whether the application is made in good faith and
aColeman v. Tennessee, 7 Otto, 513. And see People v. Gardiner, 6 Parker, 143; G. O. 29, Depart-
ment of the Northwest, 1864; G. O. 32, Departmentment of Louisiana, 1866.
b People v. Gardiner, ante.
cSee the application of this principle to the fact of the existence of the late war of the rebellion
in Justice Field's charge to the grand jury in U. S. v. Greathouse, 4 Sawyer, 457.
dThat the Southern States during the late war were "at no time out of the pale of Uw Union," see
White v. Hart, 13 Wallace, 646.
eSee the declaration of this principle in the case of Dow v. Johnson, 10 Otto, 169. ''
992 MILITARY LAWS OF THE UNITED STATES.
in the interests of law and justice, the commander may demand that the application
be especially explicit and be sworn to; and in general the preferable and, indeed,
only satisfactory course will be to require the production, if practicable, of a due and
formal warrant or writ for the arrest of the party, (a) The application required by
the article should be made in a case where the crime was committed by the party
before he entered the military service equally as where it was committed by him
while in the service. (6) In the former case a more exact identification may perhaps
reasonably be required. Ibid., par. 95.
The provisions of this article are applicable only when the officer or soldier is
accused of a crime or offense "which is punishable by the laws of the land;" i. e.,
by the public law — statutes or constitution — of the particular State. (c) Ibid.,
par. 96.
The article is not applicable to a case of an offense committed against the laws of
the United States, as, for instance, the statutes prohibiting the introduction of liquor
into the Indian country. Nor is it applicable to a case of an offense committed in
a place over and within which the jurisdiction of the United States is exclusive, (d)
Ibid., par. 97.
The party should be surrendered upon proper application, though the offense be
one of which a military court has jurisdiction concurrently with the civil courts,
unless, indeed, the military jurisdiction has already duly attached (by means of
arrest or service of charges with a view to trial), in which case the prisoner may be
surrendered or not as the proper authority may determine. A soldier under a sen-
tence of confinement imposed by court-martial can not, in general, properly be sur-
rendered under this article. In such a case the . civil authorities should regularly
defer their application till the military punishment has been executed or remitted, (e)
Where a soldier, duly surrendered under this article and allowed to go on bail, was
thereupon returned to duty, held that it was within the spirit of the article for the
department commander to instruct the commanding officer of such soldier to cause
him to appear for trial at the proper time. Ibid., par. 98.
An officer or soldier accused as indicated by the article, though he may be willing
and may desire to surrender himself to the civil authorities, or to appear before the
civil court, should not in general be permitted to do so, but should be required to
await the formal application. Ibid., par. 100.
In view of the obligation devolved by this article upon officers of the Army, a post
commander would properly be required to apprehend and hold for surrender to the
civil authorities a soldier who, having been once surrendered under the article, had
escaped and returned to the post. (/) Ibid. 53, par. 8.
The term "any of the United States," employed in this article, held properly to
include any and all of the political members of our governmental system, and to
embrace an organized Territory equally as a State. Ibid., par. 101.
The article is directory, not jurisdictional. It does not limit the action to be taken
by the military authorities to cases where the application is made by the party; it
may be made in his behalf. It does not place a soldier who has committed a crime
and been indicted therefor beyond the reach of the civil power if the person injured
does not apply for his surrender. In a case — one of murder, for example — where
there can be no personal application, the State properly takes the place of the indi-
vidual. And so in all other cases where an indictment has been found or a wrarrant
of arrest has been issued, the State, with which resides the jurisdiction and the power
to prosecute, may make the demand, and upon its demand it is the duty of the com-
manding officer to surrender the party charged. Ibid., par. 102.
The article contemplates only cases in which an "officer or soldier is accused,"
etc. So, held that it did not apply to a case of a civilian (Chinese) laundry man
employed and residing at a military post accused of a civil crime. While it would
be equally desirable that the surrender should be made in such a case, such sur-
all Opin. Att. Gen., 10.
6 See G. O. 29, Department of the Northwest, 1864, where it is remarked that there is an especial
obligation to surrender the soldier where the crime was committed by him before entering the mili-
tary service.
c As to the meaning of the term "laws of the land," especially with reference to municipal ordi-
nances, see Vanzantv. Waddell, 2 Yerger, 270; State Bk. v. Cooper, ibid., 605; Horn v. People, 26
Mich., 228. In XXI Opin. Att. Gen., 88 (published in circular 15, A,. G. O., 1894), it was held that a
municipal ordinance is within the expression " laws of the land," as used in the fifty-ninth article of
war, and that a soldier violating such an ordinance and escaping to a military reservation should be
delivered to the civil authorities for trial on demand.
d It is further held, in Ex parte McRoberts, 16 Iowa, 603, that the provisions of the article apply
only to officers and soldiers while within the immediate control and jurisdiction of the military
authorities, anjL.therefore do not apply to a case of a soldier absent on furlough; but that such a
soldier, pendingiiis furlough, may be arrested in the same manner as any civilian.
cCompare VI Opin. Att. Gen., 423.
/See a case to a similar effect published in G. O. 7, Department of the South, 1871.
MILITARY LAWS OF THE UNITED STATES. 993
ART. 60. Any person in the military service of the certain crimes
J of fraud against
United States who makes or causes to be made any claim the united
States
against the United States, or any officer thereof, knowing Mar! 2, ises, c.
' , J & 67,s.l,v.l2,p.696.
such claim to be talse or fraudulent; or GO Art. of war.
Who presents or causes to be presented to any person cli^mking false
in the civil or military service thereof, for approval or pay- fa£e claim ting
ment, any claim against the United States or any officer
thereof, knowing such claim to be false or fraudulent; or
Who enters into any agreement or conspiracy to defraud obtf£T™aeymeS
the United States by obtaining, or aiding others to obtain, of false claim.
the allowance or payment of any false or fraudulent
claim; or
Who, for the purpose of obtaining, or aiding others to False paper,
obtain, the approval, allowance, or payment of any claim
against the United States, or against any officer thereof,
makes or uses, or procures or advises the making or use of,
any writing or other paper, knowing the same to contain
any false or fraudulent statement; or
Who, for the purpose of obtaining, or aiding others to perjury.
obtain, the approval, allowance, or payment of any claim
against the United States or any officer thereof, makes,
or procures or advises the making of, any oath to any
fact or to any writing or other paper, knowing such oath
to be false; or1
render would be a matter of comity, not of official duty under the article. Ibid.,
par. 103.
This article does not apply to the service by a sheriff on an officer or soldier of a
subpoena to appear as a witness before a civil court. In such a case, indeed, the
civil official should, as a matter of comity, apply first to the post commander, whether
or not the post be within the exclusive jurisdiction of the United States. It will
then be for the commander, in comity, to facilitate the service and to issue the neces-
sary permit or order to enable and cause the officer or soldier to attend the court.
Ibid., par. 104.
This article does not apply to a charge of introducing liquor into the Indian coun-
try or to a reservation, exclusive jurisdiction over which has been ceded to the United
States. (Ibid., par. 97.) Its application in time of war is discretionary with the
military authorities. Ibid., par. 105.
1 The offense known as the duplicating of pay rolls, where it involves, as it gener-
ally does, a presenting or a causing to be presented of a false or fraudulent claim
against the United States, is properly chargeable under this article. Ibid., par. 107.
When an officer who had been sentenced to forfeit all pay due, but whose sentence
had not yet been approved or published, presented pay accounts to the paymaster
for his pay and received the amount of the same, held that he was not triable for the
offense of presenting a fraudulent claim under this article. Ibid., par. 108.
Where a soldier, in order to procure his discharge from the service and the pay-
ment thereupon of a considerable amount not in fact due him, forged the name of
his commanding officer on a discharge paper and a "final statement" paper, and
presented the same to a paymaster, held that he was chargeable with offenses defined
in the second, fourth, and sixth paragraphs of this article. Ibid., par. 109.
Where a disbursing officer, having caused a creditor of the United States to sign
a receipt in frlank, paid him a less sum than was due him, and afterwards inserted
the true amount due in the receipt, so as to obtain credit with the United States for
22924—08 63
994 MILITARY LAWS OF THE UNITED STATES.
Forgery. Who, for the purpose of obtaining, or aiding others to
obtain, the approval, allowance, or payment of any claim
against the United States or any officer thereof, forges or
counterfeits, or procures or advises the forging or counter-
feiting of, any signature upon any writing or other paper,
or uses, or procures or advises the use of, any such signa-
ture, knowing the same to be forged or counterfeited; or 1
Delivering less Who, having charge, possession, custody, or control of
ceipt calls for. any money or other property of the United States, f ur-
the greater sum, held that he was chargeable with the offense defined in the seventh
paragraph of this article. Ibid. 56, par. 5.
Where an officer, by collusion with a contractor, who had contracted for the deliv-
ery of military supplies, received for a pecuniary consideration from the latter a less
amount of supplies than the United States was entitled to under the contract, while
at the same time giving him a voucher certifying on its face the delivery of the
whole amount, held that such officer was chargeable with an offense of the class
defined in the eighth paragraph of this article. Ibid., par. 110.
The offense of stealing, indicated in the 9th paragraph of this article, consists in a
larceny of "property of the United States furnished or intended for the military
service." Except in time of war larceny of other property can be charged as a mili-
tary offense only when cognizable under Article 62, as prejudicing good order and
military discipline. Ibid., par. 113.
Section 5494, Revised Statutes, provides that the refusal of any person charged
with the disbursement of public moneys promptly to transfer or disburse the funds
in his hands "upon the legal requirement of an authorized officer, shall be deemed,
upon the trial of any indictment against such person for embezzlement, as prima facie
evidence of such embezzlement." Applying this rule to a military case, it is clear
that, in the event of such a refusal by a disbursing officer of the Army, the burden
of proof would be upon him to show that his proceeding was justified, and that it
would not be for the prosecution to show what had become of the funds. So, where
an acting commissary of subsistence on being relieved failed to turn over the public
moneys in his hands to his successor or to his post commander when ordered to do
so, or to produce such moneys, exhibit vouchers for the same, or otherwise account
for their use, when so required by his department commander; held that he was
properly charged with and convicted of an intent to defraud the United States. It is
the act of the misappropriation described itself which constitutes the offense, irre-
spective of the purpose or motive of such act. Ibid., par. 114.
Where an officer of the quartermaster department used teams, tools, and other
public property, in his possession as such officer, in erecting buildings, etc., for the
benefit of an association, composed mainly of civilians, of which he was a member;
held that he was properly chargeable with a misappropriation of property of the
United States. And similarly held of a loaning by such an officer of public property
(corn) to a contractor, for the purpose of enabling him to fill a contract made with
the United States through another officer, (a) The fact that a practice exists in a post
or other command of making a use (not authorized by regulation or order) of govern-
ment property for private purposes, or of loaning it in the prospect of a prompt return,
can constitute no defense to a charge for such act as an offense under this article.
Such practice, however, if sanctioned, though improperly, by superior authority,
may be shown in evidence in mitigation of sentence. Ibid., par. 112.
A charge of embezzlement under this article would not lie where the money or
property embezzled was not public money, but belonged to the post, company, or
exchange funds; such money not being public money within the scope of article 60.
G. C. M. O. 27, War Dept,, 1872; see, also, G. C. M. O. 4, ibid., 1873.
Under the grant of jurisdiction to a court-martial conferred by the 60th Article of
War, providing that any person in the military service who misappropriates any
money of the United States, ' ' furnished or intended for the military service thereof, ' '
shaU be punished, etc., such a court has no power to convict an officer of the Army
for misappropriating money appropriated by Congress for the improvement of rivers
and harbors. In re Carter, 97 Fed. Rep., 496. Such a conviction, however, may
be had where the misappropriation of such funds is charged as a violation of article
62. Ibid.
a See G. C. M. O. 46, Hd. Qrs. Army,
MILITARY LAWS OF THE UNITED STATES. 995
nished or intended for the military service thereof, know-
ingly delivers, or causes to be delivered, to any persons
having authority to receive the same, any amount thereof
less than that for which he receives a certificate or receipt;
or
Who, being authorized to make or deliver any paper wgjjjjf rekSS^
certifying the receipt of any property of the United States, ing truth of-
furnished or intended for the military service thereof,
makes, or delivers to any person, such writing, without
having full knowledge of the truth of the statements
therein contained, and with intent to defraud the United
States; or1
Who steals, embezzles, knowingly and willfully misap- Wrongfuiiynslh-
propriates, applies to his own use or benefit, or wrongfully mgl etc-
or knowingly sells or disposes of any ordnance, arms,
equipments, ammunition, clothing, subsistence stores,
money, or other property of the United States, furnished
or intended for the military service thereof; or1
Who knowingly purchases, or receives in pledge for any m? J^J PuJ>olic
obligation or indebtedness, from any soldier, officer, orerty-
1 Where a quartermaster used temporarily with his private carriage a pair of Gov-
ernment horses in his charge, held that he was not properly chargeable with embez-
zlement, but with the offense, under this article, of "knowingly applying to his own
use and benefit property of the United States, furnished for the military service."
Dig. Opin. J. A. G., par. 115.
The misappropriation specified in the article need not be an appropriation for the
personal profit of the accused. The words "to his own use or benefit" qualify only
the term "applies." Ibid., par. 116.
In charging a stealing, embezzlement, misappropriation, etc., under this article, it
is not necessary to allege that the funds or property were "furnished or intended for
the military service;" it is sufficient if this fact appears from the evidence, and in
most cases it will be inferable from the very nature of the property itself — as where,
for example, the same consists of "quartermaster stores," " subsistence stores, " "ord-
nance stores," etc. (a) Ibid., par. 119.
In charging embezzlement under this article, it is not necessary, if the fact suffi-
ciently appears from other allegations, to aver in terms in the specification that the
money or property was "furnished or intended for the military service of the United
States." Ibid., 58 par. 14.
Repeated false statements of the accused relative to the public moneys for which
he was accountable are competent evidence going to sustain a charge of embezzle-
ment under this article. Ibid., par. 120.
The application or operation of this article is in no manner affected by the enact-
ment of March 3, 1875, chapter 144, constituting embezzlement of public property a
felony and making it triable by a United States court, such act being a purely civil
statue. Ibid., par. 121.
Where an officer, for the purpose of obtaining the allowance of a fraudulent claim
against the United States, willfully induced another to make to the United States a
lease of premises for public use, containing a false and fraudulent statement, held that
he was chargeable with an offense of the class specified in the fourth paragraph of
this article. Ibid., par. 122.
a Whether this provision in subjecting officers and soldiers discharged, mustered out, etc., and
become civilians, to trial by court-martial in the same manner as if they were a part of the Army is
constitutional is a question which is believed not to have been judicially passed upon. Probably
originally inserted in the act of March 2, 1863 (from which the article is repeated) as in the nature
of a war measure, it was in fact relied upon as giving jurisdiction in but a small number of cases
even during the war, and since that period no case is known in which the exceptional jurisdiction
conferred has been taken advantage of.
996 MILITARY LAWS OF THE UNITED STATES.
other person who is a part of or employed in said forces
or service, any ordnance, arms, equipments, ammunition,
clothing, subsistence stores, or other property of the
United States, such soldier, officer, or other person not
having lawful right to sell or pledge the same,
Shall, on conviction thereof, be punished by fine or im-
prisonment, or by such other punishment as a court-martial
may adjudge, or by any or all of said penalties. And if
any person, being guilty of any of the offenses aforesaid,
while in the military service of the United States, receives
his discharge, or is dismissed from the service, he shall
continue to be liable to be arrested and held for trial and
sentence by a eourt-martial, in the same manner and to
the same extent as if he had not received such discharge
nor been dismissed. Act of March 2, 1901 (31 Stat. L.,
951).
coSgTnotllclr ART. 61- Any officer who is convicted of conduct unbe-
anedi A^orwJr. coming an officer and a gentleman shall be dismissed from
the service.1
1 To constitute an offense under this article the conduct need not be ' ' scandalous
and infamous." These words, contained in the original article of 1775, were dropped
in the form adopted in 1806. Nor is it essential that the act should compromise the
honor of the officer, (a) It is only necessary that the conduct should be such as is
at once disgraceful or disreputable and manifestly unbefitting both an officer of the
Army and a gentleman. (6) An act, however, which is only slightly discreditable is
not, in practice, made the subject of a charge under this article. The article, in
making the punishment of dismissal imperative in all cases, evidently contemplates
that the conduct, while unfitting the party for the society of men of a scrupulous
sense of decency and honor, shall exhibit him as unworthy to hold a commission in
the Army. Dig. Opin. J. A. G., par. 123.
Knowingly making to a superior a false official report held chargeable under this
article. So of a deliberately false official certificate as to the truth or correctness of
an official voucher, roll, return, etc. So of any deliberately false official statement,
written or verbal, of a material character. So where an officer caused the sergeant
of the guard to enter in the guard book a false official report that he (the officer) had
duly visited the guard at certain hours as officer of the day, when he had in fact been
guilty of a neglect of duty in this particular, and thereupon himself signed such re-
port and submitted it to his post commander, held that his conduct was chargeable
as an offense under this article. Ibid., par. 124.
The following acts, committed in a particular case, held to be offenses within this
article: Preferring false accusations against an officer; attempting to induce an officer
to join in a fraud upon the United States; attempt at subornation of perjury. Ibid.,
par. 125. For other acts chargeable under this article see paragraphs 126-131, Ibid.
To justify a charge under this article it is not necessary that the act or conduct of
the officer should be immediately connected with or should directly affect the mili-
tary service. It is sufficient that it is morally wrong and of such a nature that, while
dishonoring or disgracing him as a gentlemen, it compromises his character and posi-
tion as an officer of the Army. Ibid., par. 132.
Thus, though a mere neglect on the part of an officer to satisfy his private pecun-
iary obligations will not ordinarily furnish sufficient grounds for charges against him,
yet where the debt has been dishonorably incurred — as where money has been bor-
aG. O. 25, Department of the Missouri, 1867.
6 "An officer of the Army is bound by the law to be a gentleman." Attorney-General Cushing,
VI Opins. , 417. See definitions or partial definitions of the class of offenses contemplated by this article
in G. O. 45, Army of the Potomac, 1864; G. O. 29. Department of California, 1865; G. O. 7, Department
of the Lakes, 1872, G. C. M. 0. 69., Department of the East, 1870; G. C. M. 0. 41, Headquarters of Army,
1879.
MILITARY LAWS OF THE UlSnTED STATES. 997
rowed under false promises or representations as to payment or security, or where
the nonpayment has been accompanied by such circumstances of fraud, deceit, eva-
sion, denial of indebtedness, etc., as to amount to dishonorable conduct — the continued
nonpayment, in connection with the facts or circumstances rendering it dishonorable,
may properly be deemed to constitute an offense chargeable under this article, (a)
Ibid., par. 133.
Where an officer, in payment of a debt, gave his check upon a bank, representing
at the same time that he had funds there, when in fact, as he was well aware, he
had none, held that he was amenable to a charge under this article. Ibid., par. 134.
Neglect or refusal to pay honest debts may constitute an offense under this article
where so repeated or persistent as to furnish reasonable ground for inferring that the
officer designs or desires to avoid or indefinitely defer a settlement. This especially
where the debts are due to soldiers for money borrowed from or held in trust for
them. Ibid., par. 135. See also par. 138, ibid.
An indifference on the part of an officer to his pecuniary obligations, of so marked
and inexcusable a character as to induce repeated just complaints to his military
commander or the Secretary of War by his creditors, and to bring discredit and
scandal upon the military service, held to constitute an offense within the purview of
this article. (6) Ibid., par. 136.
Where certain officers of a colored regiment made a practice of loaning to men of
the regiment small amounts of money, for which they charged and received in pay-
ment at the rate of two dollars for one at the next pay day, held that they were
properly convicted of a violation of this article. Ibid., par. 137.
Where an officer stationed in Utah was married there by a Mormon official to a
female, with whom he lived as his wife, although having at the same time a legal
wife residing in the States, held that he might properly be brought to trial by general
court-martial for a violation of this article. So held of an officer who committed
bigamy by publicly contracting marriage in the United States while having a legal
wife living in Scotland whom he had abandoned. Ibid., par. 139.
Abusing and assaulting his wife by an officer at a military post, held chargeable
as an offense under this article. Ibid., par. 140.
The institution by an officer of fraudulent proceedings against his wife for divorce,
and the manufacture of false testimony to be used against her in the suit, in connec-
tion with an aoandonment of her and neglect to provide for her support, held to con-
stitute ''conduct unbecoming an officer and a gentleman" in the sense of this article.
Ibid., par. 141.
According to the accepted principle of interpretation, by which articles of war
enjoining a specific punishment or punishments are held to be in this particular
both mandatory and exclusive, no sentence other than one of simple dismissal can
legally be adjudged upon a conviction under this article. A sentence which adds to
dismissal any other penalty or penalties, as disqualification for office, forfeiture of
pay, imprisonment, etc., is valid and operative only as to the dismissal, and as to the
rest should be formally disapproved as being unauthorized and of no effect. Ibid.,
par. 142.
The use of abusive language toward a commanding officer may constitute an
offense under this article. But, both as a matter of correct pleading and because
the twentieth article authorizes a punishment less than dismissal, the language
should be so particularized as to show that it constituted an offense more grave than
the mere disrespect which is the subject of the latter article. A specification not thus
setting forth and characterizing the epithets or words employed will be subject to a
motion to make definite or strike out. Ibid., par. 143.
The mere acceptance by an officer of compensation from private parties (civilians)
whom, by permission of his superior, he assists in a private undertaking, though it
may be an indelicate act, is not an offense under this article. Of the propriety of
such conduct an officer must judge for himself. Ibid., par. 144.
See, as to the duplication of pay accounts, ibid. , pars. 145, 146.
Held that a continued neglect, without adequate excuse, to satisfy a pecuniary
obligation long overdue, after specific assurance given of speedy payment, was a
dishonorable act, constituting an offense under this article. Ibid., par. 138.
a Cases of officers made amenable to trial by court-martial, under this article, fbr the nonfulfillment
of pecuniary obligations to other officers, enlisted men, post traders, and civilians, are found in the
following general orders of the War Department and Headquarters of the Army: No. 87, of 1866; Nos.
3, 55, 64, of 1869; No. 15, of 1870, No. 17, of 1871; Nos. 22, 46, of 1872; No. 10, of 1*873; Nos. 25, 50, 68, 82,
Of 1874; No. 25, of 1875; No. 100, of 1876: No. 46, of 1877.
ft See, on the subject of these complaints, the circular issued originally from the War Department
(A. G. O.) on February 8, 1872, in which the Secretary of War "declares his intention to bring to trial
by court-martial," under the sixty-first article of war, "any officer who, after due notice, shall fail to
quiet such claims against him."
998 MILITARY LAWS OF THE UNITED STATES.
ART- 62- A11 crimes not capital, and all disorders and
-neglects, which officers and soldiers may be guilty of, to
02 Art. war. ^ne prejudice of good order and military discipline, though
not mentioned in the foregoing articles of war, are to be
taken cognizance of by a general, or a regimental, garri-
son, or field officers' court-martial, according to the nature
and degree of the offense, and punishable at the discretion
of such court.1
1 The word "crimes" in this article, distinguished as it is from "neglects" and
"disorders," means military offenses of a more serious character than these, includ-
ing such as are also civil crimes, as homicide, robbery, arson, larceny, etc. "Capi-
tal" crimes (i. e., crimes capitally punishable), including murder, or any grade of
murder made capital by statute, can not be taken cognizance of by courts-martial
under this article. (As to the jurisdiction of courts-martial in cases of murder, etc.,
in time of war, see art. 58, supra, note.) A crime which is in fact murder, and capiv
tal by statute of the United States or of the State in which committed, can not be
brought within the jurisdiction of a court-martial under this article by charging it
as "manslaughter, to the prejudice," etc., or simply as "conduct to the prejudice,"
etc. If the specification or the proof shows that the crime was murder and a
capital offense, the court should refuse to take jurisdiction, or to find or sentence.
If it assume to Jo so, the proceedings should be disapproved as unauthorized and
void. Ibid., par. 148.
The term "to the prejudice of good order and military discipline" qualifies, accord-
ing to the accepted interpretation, the word " crimes" as well as the words "disor-
ders and neglects. " Thus, the crime of larceny (sometimes charged as "theft" or
"stealing") is held chargeable under this article when it clearly affects the order
and discipline of the military service. Stealing, for example, from a fellow-soldier
or from an officer (or stealing of public money or other public property where the
offense is not more properly a violation of article 60), is generally so chargeable.
And so of any other crime (not capital) the commission of which has prejudiced
military discipline, as, for example, manslaughter (or homicide not amounting to
murder) of a soldier; assault with intent to kill a fellow-soldier; forgery of the name
of a disbursing or other military officer to a Government check or draft, or forgery
of an officer's name to a check on a bank (and this whether or not anything was in
fact lost by the Government or the bank or officer); forgery in signing the name of
a fellow-soldier to a certificate of indebtedness to a sutler, or to an order on a pay-
master; embezzlement or misappropriation of the property of an officer or soldier.a
Ibid., par. 149.
Where an offense is specifically provided for in any of the Articles of War prior to
the sixty-second, the grant of jurisdiction to a court-martial to try and punish such
offense is conferred by the particular article which mentions it, .and not by the gen-
eral language of the sixty-second article, providing for the trial and punishment of
offenses not capital, and all disorders, etc., though not mentioned in the preceding
articles. In re Carter, 97 Fed. Rep., 496.
A crime, disorder, or neglect, cognizable under this article, may be charged either
by its name simply, as "larceny," "drunkenness," "neglect of "duty," etc. ; or by
its name with the addition of the words, "to the prejudice of good order and mili-
tary discipline;" or simply as "conduct to the prejudice of good order and military
discipline;" or as " violation of the sixty-second article of war." It is immaterial
in which form the charge is expressed, provided the specification sets forth facts con-
stituting an act prejudicial to good order and military discipline. Whenever the
charge and specification taken together make out a statement of an act clearly thus
prejudicial, etc., the pleading will be regarded as substantially sufficient under this
general article. Ibid., par. 151.
A charge of "conduct to the prejudice," etc., with a specification setting forth
merely trials and convictions of the accused for previous offenses, is not a pleading
of an offense under this article, or of any military offense. So of a charge of "habit-
ual drunkenness, to the prejudice," etc., with a specification setting forth instances in
which the accused has been sentenced for acts of drunkenness. Such charges, indeed,
a For cases falling within the scope of this article see Dig. Opin. J. A. G., paragraphs 149, 150, and
]59; for cases not coming under the terms of the article see ibid., par. 160.
MILITARY LAWS OF THE UNITED STATES. 999
ART. 63. All retainers to the camp, and all persons serv- camptainersof
ing with the armies of the United States in the field, 63 Art- War-
though not enlisted soldiers, are to be subject to orders,
according to the rules and discipline of war.1
are in contravention of the principle that a party shall not be twice tried for the same
offense. So, a specification under the charge of " conduct to the prejudice," etc.,
which sets forth not a distinct offense, but simply the result of an aggregation of simi-
lar offenses, is insufficient in law. Where the specifications to such a charge, in a
case of an officer, set forth that the accused was "frequently" drunk, "frequently"
absented himself without authority from his command, etc., held that these specifi-
cations were properly struck out by the court on the motion of the accused. In such
a case the only correct pleading is a general charge under this article, with specifica-
tions setting forth — each separately — some particular and specific instance of offense.
Ibid., par. 152.
Whether acts committed against civilians are offenses within this article is a ques-
tion to be determined by the circumstances of each case, and in regard to which no
general rule can be laid down. If the offense be committed on a military reservation,
or other premises occupied by the Army, or in its neighborhood, so as to be — so to
speak — in the constructive presence of the Army; or if committed by an officer or
soldier while on duty, particularly if the injury is done to a member of the com-
munity whom the offender is specially required to protect; or if committed in the
presence of other soldiers, or while the offender is in uniform; or if the offender use
his military position or that of another for the purpose of intimidation or other
unlawful influence or object — the offense will, in general, properly be regarded as an
act prejudicial to good order and military discipline, and cognizable by a court-martial
under this article. The judgment on the subject of a court of military officers, experts
as to such cases, confirmed by the proper reviewing commander, should be reluctantly
disturbed. As to a charge of embezzlement of public funds charged under this article,
see Dig. Opin. J. A. G., par. 154, with notes thereon. See also G. C. M. O. 34, H. Q.
Army, 1866; Carter v. McLaughry, 105 Fed. Rep., 614; S. O. 172, A. G. O., 1899;
In re Carter, 97 Fed. Rep., 496.
*To determine when an army is "in the field" is to decide the question raised.
These words imply military operations with a view to an enemy. Hostilities with
Indians seem to be as much within their meaning as any other kind of warfare. To
enable the officers of an army to preserve good order and discipline is the object of
this article, and these may be as necessary in the face of hostile savages as in the front
of any other enemy. When an army is engaged in offensive or defensive operations, I
think it is safe to say that it is an army "in the field."
To decide exactly where the boundary line runs between civil and military juris-
diction, as to the civilians attached to an army, is difficult; but it is quite evident that
they are within military jurisdiction, as provided for in said article, when their
treachery, defection, or insubordination might endanger or embarrass the army to
which they belong in its operations against what is known in military phrase as "an
enemy." Possibly the fact that troops found in a region of country chiefly inhabited
by Indians, and remote from the exercise of civil authority, may enter into the
description of "an army in the field." Persons who attach themselves to an expe-
dition against hostile Indians may be understood as agreeing that they will submit
themselves, for the time being, to military control. XIV Opin. Att. Gen. 22, G. 0.
17, A. G. O., 1872.
The accepted interpretation of this article is that it subjects (in time of war) the
classes of persons specified not only to military discipline and government in general,
but also to the jurisdiction of courts-martial (upon the theory, probably, that they
are thus made, for tbre time being, a part of the Army). Individuals, however, of
the class termed ' ' retainers to the camp, ' ' or officers' servants and the like, as well as
camp followers generally, have rarely been subjected to trial in our service. For
breaches of discipline committed by them the punishment has generally been expul-
sion from the limits of the camp and dismissal from employment. Dig. Opin. J. A.
G., par. 161.
The discipline authorized by the article has mainly been applied to the description
of "persons serving with the armies of the United States in the field" — that is to
say, civilians serving in a quasi-military capacity in connection with troops, in time
of war and on its theater. Thus, during the late war, civilians of the following
classes were, in repeated cases, held amenable, under this article, to the military
jurisdiction, and subjected to trial and punishment by courts-martial: Teamsters
1000 MILITARY LAWS OF THE UNITED STATES.
pp: ART< 64' The officers and soldiers of any troops, whether
i863,2c87^ai, v. ^ilitia or others, mustered and in pay of the United States
]264-Art.' war. sna^ a^ all times and in all places be governed by the
Articles of War and shall be subject to be tried by courts-
martial.1
employed with wagon trains, watchmen, laborers, and other employees of the quar-
termaster, subsistence, engineer, ordnance, provost-marshal, etc., departments; am-
bulance drivers; telegraph operators; interpreters; guides; paymasters' clerks;
veterinary surgeons; "contract" surgeons, nurses, and hospital attendants; conductors
and engineers of railroad trains operated upon the theater of war for military purposes;
officers and men employed on Government transports, etc. But the mere fact of
employment by the Government pending a general war does not render the civil
employee so amenable. The employment must be in connection with the army in
the field and on the theater of hostilities. Ibid. , par. 162.
Held (June, 1863) that the force employed in the "ram fleet" on Western waters
was properly a contingent of the Army rather than of the Navy, and accordingly that
civilian commanders, pilots, and engineers employed upon such fleet during the war
and before the enemy were persons serving with the armies in the field in the sense
of this article, and therefore amenable to trial by court-martial. Ibid., par. 163.
Civil employees of the United States serving with the army in the field during
active warfare with hostile Indian tribes held amenable to trial by court-martial
under this article. A civilian who acted as guide to a command operating in a hostile
movement during an Indian war held so triable. Ibid., par. 164.
The j urisdiction authorized by this article can not be extended to civilians employed
in connection with the Army in time of peace, nor to civilians employed in such con-
nection during the period of an Indian war but not on the theater of such war. In
view of the limited theater of Indian wars, this exceptional jurisdiction is to be
extended to civilians, on account of offenses committed during such wars, with even
greater caution than in a general war. Ibid., par. 165.
Civilians can not legally be subjected to military jurisdiction by the authority of
this article after the war (whether general or against Indians), pending which their
offenses were committed, has terminated. The jurisdiction, to be lawfully exercised,
must be exercised during the status belli. Ibid., par. 166.
A civil employee of the United States in time of peace is most clearly not made
amenable to the military jurisdiction and trial by court-martial by the fact that he
is employed in an office connected with the administration of the military branch of
the Government. Such employment does not make him a part of the military estab-
lishment, nor is his offense, however nearly it may affect the military service, "a
case arising in the land forces ' ' in the sense of article 5 of the amendments to the
Constitution. So held (June, 1877) that a civilian clerk employed in time of peace
in the office of the chief quartermaster at San Francisco was manifestly not amena-
ble, under this article or otherwise, to trial by court-martial for the embezzlement
or misapplication of Government funds appropriated for the Quartermaster De-
partment, (a) And remarked that if this official could be made liable to such juris-
tion, all the male and female clerks employed in the War Department might upon the
same principle be held thus amenable f or offenses against the Government committed
in connection with their duties. And so held in the case of a civilian clerk employed
at Camp Robinson, Nebraska, charged with conspiring with contractors to defraud
the United States, the post not being within the theater of any Indian war or hos-
tilities pending at the period of the offense. (6) Ibid., par. 167.
Held (April, 1877) that superintendents of national cemeteries, being no part of the
Army, but civilians (see section 4874, Revised Statutes), were clearly not amenable
to military jurisdiction or trial under this article or otherwise, (c) Ibid., par. 168.
1 It is a general principle, confirmed by this article, that military offenses are not
territorial (see Manual for Courts-Martial, p. 14). So held that an officer who exhib-
ited himself in an intoxicated condition at a public ball in Mexico, though not pres-
ent in any military capacity, was amenable for his offense to the jurisdiction of a
court-martial in Texas. Ibid., par. 169; Houston v. Moore, 5 Wh., 20.
a See the confirmatory opinion in this case of the Attorney-General of May 15, 1878, XVI Opin., 139.
6 See opinion, to a similar effect, of the Attorney-General of June 15, 1878, XVI Opins., 48.
cSee, to the same effect, the opinion of the Attorney-General referred to in note o.
MILITARY LAWS OF THE UNITED STATES. 1001
ART. 65. Officers charged with crime l shall be arrested
cr
65 Art. War.
and confined in their barracks, quarters, or tents, and de- crimes-
prived of their swords by the commanding officer. And
any officer who leaves his confinement before he is set at
liberty by his commanding officer shall be dismissed from
the service.2
ART. 66. Soldiers charged with crimes shall be confined soldiers ac-
0 cused of crimes.
until tried by court-martial or released DJ proper author- 66 Art. war.
ity.3
ART. 67. No provost-marshal, or officer commanding a on^rgeivingpris~
guard, shall refuse to receive or keep any prisoner com- 67 Art- War-
mitted to his charge by an officer belonging to the forces of
the United States; provided the officer committing shall,
1 The term " crime " is here employed in a general sense, referring to offenses of a
military character as well as to those of a civil character which are cognizable by
court-martial, (a) An offense in violation of this article is only committed when an
officer confined in "close arrest" to his quarters leaves the same without authority.
A breach of a mere formal arrest or of any arrest not accompanied by confinement
to quarters would be an offense not within this article, but under article 62. Ibid.,
par. 170.
Simply disobeying an order to proceed and report in arrest to a certain commander
held not an offense chargeable under this article. Ibid., par. 171.
2 Where an officer in close arrest was permitted by his commanding officer to leave
temporarily his confinement, held that his delaying his return for a brief period
beyond the time fixed therefor did not properly constitute an offense under this
article. Ibid., par. 172.
Though any unauthorized leaving of his confinement by an officer in close arrest
is, strictly, a violation of the article, it would seem in view of the severe mandatory
punishment prescribed that an officer should not in general be brought to trial under
the same unless his act was of a reckless or deliberately insubordinate character.
Ibid., par. 173.
It is no defense to a charge of breach of arrest in violation of this article that the
accused is innocent of the offense for which he was arrested. (6) It is a defense,
however, that subsequently to the original confinement the accused has been put on
duty or allowed to go on duty, provided that before the breach assigned he has not
been duly rearrested and reconfined.(c) Ibid., 78, par. 5.
The requirement of this article that an offender "shall be dismissed" is held to be
exclusive of any other punishment. A sentence of dismissal with forfeiture of pay
is unauthorized and inoperative as to the forfeiture, and as to this should be disap-
proved. Ibid., par. 174. See 61st article. See also the title "Arrest and confine-
ment" in the chapter entitled MILITARY TRIBUNALS. For a case arising under this
article in which breach of arrest was charged see G. O., No. 198, A. G. O. of 1863.
3 Soldiers held in military arrest, while they may be subjected to such restraint as
may be necessary to prevent their escaping or committing violence, can not legally
be subjected to any punishment. The imposition of punishment upon soldiers while
thus detained has been on several occasions emphatically denounced by department
commanders. (d) Dig. Opin. J. A. G., par. 175.
The word * ' crimes ' ' as used in this article is construed to mean serious military
offenses. So that a soldier will not properly be ' ' confined ' ' where not charged witn
one of the more serious of the military offenses — in other words, where charged only
with an offense of a minor character Ibid., par. 176. See the title "Arrest and
confinement" in the chapter entitled MILITARY TRIBUNALS.
a Compare Wolton v. Gavin, 16 Ad. & El., 66, 68; Simmons, sec. 360.
b Hough (Practice), 494.
c Hough (Precedents), 19.
dSee, for example, the remarks of such commanders in G. O., 23, Department of the East, 1863; G. O.,
26, Department of California, 1866; G. O., 23, Department of the Lakes, 1870; G. O., 106, Department
of Dakota, 1871. And compare remarks of Justice Story in Steere v. Field, 2 Mason, 516,
1002 MILITARY LAWS OF THE UNITED STATES.
at the same time, deliver an account in writing, signed by
himself, of the crime charged against the prisoner.1
on^rsportof pris" ART- 68. Every officer to whose charge a prisoner is
68 Art. war. committed shall, within twenty-four hours after such com-
mitment, or as soon as he is relieved from his guard, report
in writing, to the commanding officer, the name of such
prisoner, the crime charged against him, and the name of
the officer committing him; and if he fails to make such
report, he shall be punished as a court-martial may direct.
on^r^fh^Fau- ART. 69. Any officer who presumes, without proper au-
th69lrt.ewt?.es' thority , to release any prisoner committed to his charge, or
suffers any prisoner so committed to escape, shall be pun-
ished as a court-martial may direct.2
confinement °f ART- 7o- No officer or soldier put in arrest shall be con-
70 Art. wiir. tinued in confinement more than eight days, or until such
time as a court-martial can be assembled.3
copyof charges ART. 71. When an officer is put in arrest for the purpose
and time of trial. . r
2ooUsyiiV8i2' c' ^na^ except at remote military- posts or stations, the
595! officer by whose order he is arrested shall see that a copy
71 Art. War. *J
of the charges on which he is to be tried is served upon
him within eight days after his arrest, and that he is brought
to trial within ten days thereafter, unless the necessities
of the service prevent such trial; and then he shall be
brought to trial within thirty days after the expiration of
said ten days. If a copy of the charges be not served,
or the arrested officer be not brought to trial, as herein
required, the arrest shall cease. But officers released from
arrest, under the provisions of this article, may be tried,
'In the English case of Wolton v. Gavin (16 Ad. and EL, 70) it was decided that
4 ' a commanding officer receiving a soldier charged with desertion by a noncommis-
sioned officer, who delivered a written signed charge of the same, is justified under
this article in detaining such soldier. He is bound to receive the prisoner under the
article of war and he is not liable to an action for so doing. It makes no difference
whether the crime be civil or military. The fact that a man is prima facie a soldier,
and enlisted, is sufficient to bring him under the article of war. The duty of receiv-
ing arises eo instanti — as soon as he is presented.
If such imprisonment proves illegal, the committing officer becomes responsible,
the duty of the officer commanding the guard being ministerial merely. See, in this
connection, the case of McCall v. McDowell, 1 Abbott, 212.
2 General Order 42 of 1901, fixing the maximum punishments, appoints different
limits of punishment for willfully and for negligently allowing an escape as separate
offenses. A charge for suffering an escape under this article should therefore indi-
cate, in the specification, whether the act is alleged to be willful or negligent only.
Ibid., 79, par. 1.
3 Detaining soldiers in arrest for long and unreasonable periods, when it is practica-
ble to bring them to trial, is arbitrary and oppressive, and in contravention both of
the letter and spirit of this article. Whether the delay in any case is to be regarded
as so far unreasonable as properly to subject the commander responsible therefor
to military charges or a civil action must depend upon the circumstances of the situa-
tion and the exigencies of the service at the time, (a) Ibid., par. 177 See the title
"Arrest and confinement," in the chapter entitled MILITARY TRIBUNALS.
a Compare Blabe's Case, 2 Maule & Sel., 428; Bailey v. Warden, 4 ibid., 400.
MILITARY LAWS OF THE UNITED STATES. 1003
whenever the exigencies of the service shall permit, within
twelve months after such release from arrest.1
ART. 72. Any general officer commanding an army, a
territorial division, or a department, or colonel command-
ing a separate department, may appoint general courts- \^t v!£,p!i2i?'
martial whenever necessary. But when any such com- 72 Artt War>
rnander is the accuser or prosecutor of any officer under
his command, the court shall be appointed by the Presi-
dent, and its proceedings and sentence shall be sent directly
to the Secretary of War, by whom they shall be laid before
the President for his approval or orders in the case.2 Act
of July 5, 1884 (%3 Stat. Z., 121).
1 Though an officer, in whose case the provisions of this article in regard to serv-
ice of charges and trial have not been complied with, is entitled to be released from
arrest, he is not authorized to release himself therefrom. If he be not released in
accordance with the article, he should apply for his discharge from arrest, through
the proper channels to the authority by whose order the arrest was imposed, or other
proper superior. Dig. Opin. J. A. G., par. 178.
The term ''within ten days thereafter" held to mean after his arrest. Ibid.,
par. 179.
The fact that cases of officers put in arrest "at remote military posts or stations"
are excepted from the application of the article does not authorize an abuse of the
power of arrest in these cases. And where, in such a case, an arrest, considering
the facilities of communication with the department headquarters and other circum-
stances, was in fact unreasonably protracted without trial, held that the officer was
entitled to be released from arrest upon a proper application submitted for- the pur-
pose. Ibid., par. 181.
2 See the title "Constitution and composition of general courts-martial," in the
chapter entitled MILITARY TRIBUNALS. See also Mullan v. U. S., 23 Ct. Cls., 34.
Prior to the amendment of this article by the act of July 5, 1884, a colonel com-
manding a department was not authorized, as such, to convene a general court;
otherwise, however, of a colonel assigned by the President to the command of a
department according to his brevet rank of brigadier or major-general. Dig. Opin.
J. A. G. 82, par. 4.
The objection that the convening commander was the "accuser" or "prosecutor"
of the accused, being one going to the legal constitution of the court, may be raised
before the court at any stage of its proceedings. (Or it may be taken to the review-
ing officer with a view to his disapproving the proceedings, or may be made to the
President, after the approval and execution of the sentence, with a view to having
the same declared invalid, or to the obtaining of other appropriate relief.) Regu-
larly, however, the objection, if known or believed to exist, should be taken at or
before the arraignment. If the objection is not admitted by the prosecution to
exist, the accused is entitled to prove it like any other issue. Ibid. 84, par. 8.
The provision of this article (and of article 73) that when the convening com-
mander is "accuser or prosecutor" the court shall be convened by the President or
"next higher commander," being expressly restricted to general courts, has, of
course, no application to regimental or garrison courts. (But see Summary court. )
The same principle, however, will properly be applied to proceedings before these
courts if it can be done without serious embarrassment to the service. Ibid. , par. 189.
A general court-martial, convened by the division commander (a major-general)
duly acting as department commander in the absence of the regular department
commander, is legally convened by a general officer commanding a department in the
sense of this article. Ibid., par. 190.
The mere fact that a general court-martial is convened by a department com-
mander does not make such commander an "accuser or prosecutor" in the sense of
this article, (a) A department commander is not an "accuser or prosecutor" when,
upon information of misconduct duly laid before him, he orders the acting judge-
advocate of the department or the colonel commanding the regiment to proceed
to bring the offender to trial, this being a part of his due and regular supervision and
command. Ibid. 84, par. 11.
a See XVI Opin. Att. Gen., 109.
1004 MILITARY LAWS OF THE UNITED STATER.
gJSt°gen7erftl ^RT- ^. *n ^me °^ war ^e commander of a division,
tfm^oTwa?111101' of a separate brigade of troops, shall be competent to
i2DpeC33o4>1861'v 'appoint a general court-martial. But when such corn-
is Art. war. mander js the accuser or prosecutor of any person under
his command, the court shall be appointed by the next
higher commander.1
cates.dgeadv° ART. 74. Officers who may appoint a court-martial shall
74 Art. war. ke competent to appoint a judge-advocate for the same.2
p278l That whenever a court-martial shall sit in closed session
the judge-advocate shall withdraw, and when his legal
advice or his assistance in referring to recorded evidence
is required it shall be obtained in open court. Sec. 2, act
of July 27, 1892 (27 Stat. L., 278).
ART. 75. General courts-martial may consist of any num-
m?5Art. war. ^er °* officers from five to thirteen, inclusive; but they
shall not consist of less than thirteen when that number
can be convened without manifest injury to the service.3
mmSr^o?^! ^ET< ^' When the requisite number of officers to form
P°7S6 Art. war a general court-martial is not present in any post or
detachment, the commanding officer shall, in cases which
require the cognizance of such a court, report to the com-
manding officer of the department, who shall thereupon
order a court to be assembled at the nearest post or depart-
ment at which there may be such a requisite number of
officers, and shall order the party accused, with necessary
witnesses, to be transported to the place where the said
court shall be assembled.
ce?segSliar wCt ^RT- ^' Officers of the Regular Army shall not be com-
^T^Art "^M" Petent to sit on courts-martial to try the officers or sol-
diers of other forces, except as provided in Article 78.*
1 See note 2, to article 72, supra. See also, as to the powers of certain commanders
in this regard, paragraphs 192-198, ibid.
2 See the title "Judge-advocate," in the chapter entitled MILITARY TRIBUNALS.
3 Where, in the course of a trial, the number of the members of a general court-
martial is reduced by reason of absence, challenge, or the relieving of members, the
court may legally proceed with its business so long as five members, the minimum
quorum, remain; otherwise where the number is' thus reduced below five. Dig. Opin.
J. A. G., par. 201.
While a number of members less than five can not be organized as a court or pro-
ceed with a trial, they may perform such acts as are preliminary to the organization
and action of the court. Less than five members may adjourn from day to day, and
where five are present and one of them is challenged the remaining four may deter-
mine upon the sufficiency of the objection. Ibid., par. 202.
A court reduced to four members, and thereupon adjourning for an indefinite
period, does not dissolve itself. In adjourning it should report the facts to the con-
vening authority and await his orders. He may at any time complete it by the
addition of a new member or members and order it to reassemble for business.
Ibid., par 203.
Where a court, though reduced by the absence of members, operation of challenges,
etc., to below five members, yet proceeds with and concludes the trial, its further
proceedings, including its finding and sentence (if any), are unauthorized and inop-
erative. Ibid., par. 204. See also paragraphs 205-207, ibid.
4 See note 1, article 72, ante.
MILITARY LAWS OF THE UNITED STATES. 1005
ART. 78. Officers of the Marine Corps, detached for serv- R
ice with the Army by order of the President, may be asso-l™ Asso-
ciated with officers of the Regular Army on courts -martial jj^^ig^
for the trial of offenders belonging- to the Regular Army, ^32> s- 2> v- 4. P-
or to forces of the Marine Corps so detached; and in such
cases the orders of the senior officer of either corps, who
may be present and duly authorized, shall be obeyed.1
ART. 79. Officers shall be tried only by general courts- officers triable
martial, and no officer shall, when it can be avoided, be courts-martial
tried by officers inferior to him in rank.2
ART. 80. The commanding officer of each garrison, fort, cojjte summary
or other place, regiment or corps, detached battalion, or30Jun|^.i898,v.
company, or other detachment in the Army, shall have
power to appoint for such place or command, or in his dis-
cretion for each battalion thereof, a summary court to
consist of one officer to be designated by him, before whom
enlisted men who are to be tried for offenses, such as were
prior to the passage of the act to promote the adminis-
tration of justice in the Army, approved October first,
eighteen hundred and ninety, cognizable by garrison or
regimental courts-martial, and offenses cognizable by field
officers detailed to try offenders under the provisions of the
eightieth and one hundred and tenth articles of war, shall
be brought to trial within twenty-four hours of the time of
the arrest, or as soon thereafter as practicable, except when
the accused is to be tried by general court-martial; but
such summary court may be appointed and the officer
designated by superior authority when by him deemed
desirable; and the officer holding the summary court shall
have power to administer oaths and to hear and determine
such cases, and when satisfied of the guilt of the accused
1 See note 1, article 72, ante.
2 Whether the trial of an officer by officers of an inferior rank can be avoided or
not is a question not for the accused or the court, but for the officer convening the
court; and his decision (as indicated by the detail itself as made in the convening
order) upon this point, as upon that of the number of members to be detailed, is
conclusive. An officer, therefore, can not successfully challenge a member because
merely of being of a rank inferior to his own. Dig. Opin. J. A. G., par. 210.
The statement sometimes added in orders convening courts-martials to the effect
that "no officers other than those named can be detailed without injury to the serv-
ice" is as superfluous and unnecessary for the purpose of excusing the detailing of
officers junior to the accused as it is for accounting for the fact that less than the
maximum number have been selected for the court. Ibid., 89, par. 2.
At the opening of a trial by court-martial it was objected by the accused that nine
of the thirteen members as detailed were his inferiors in rank, and that the detailing
of such inferiors could have been ' ' avoided ' ' without prejudice to the service. Held,
that the objection was properly overruled by the court. Whether such a detail
' ' can be avoided " is a question to be determined by the convening authority alone,
and one upon which his determination is conclusive (a). Ibid., par. 211.
a See Mullan v. U. S., 140 U. S., 240.
1006 MILITARY LAWS OF THE UNITED STATES.
adjudge the punishment to be inflicted, which said punish-
ment shall not exceed confinement at hard labor for one
month and forfeiture of one month's pay, and, in the case
of a noncommissioned officer, reduction to the ranks in
addition thereto;1 that there shall be a summary court
record kept at each military post and in the field at the
headquarters of the proper command, in which shall be
entered a record of all cases heard and determined and the
action had thereon; and no sentence adjudged by said
summary court shall be executed until it shall have been
approved by the officer appointing the court, or by the
officer commanding for the time being: Provided, That
when but one commissioned officer is present with a com-
mand he shall hear and finally determine such cases: And
provided further, That no one while holding the privileges
of a certificate of eligibility to promotion shall be brought
before a summary court, and that noncommissioned officers
shall not, if they object thereto, be brought to trial before
summary courts without the authority of the officer com-
petent to order their trial by general court-martial, but
shall in such cases be brought to trial before garrison,
regimental, or general courts-martial, as the case may be.8
Act of June 18, 1898 (30 Stat. L., 483).
*******
The commanding officers authorized to approve the sen-
tences of summary courts and superior authority shall
have power to remit or mitigate the same. Sec. 3, ibid.
Post and other commanders shall, in time of peace, on
the last day of each month, make a report to the depart-
ment headquarters of the number of cases determined by
summary court during the month, setting forth the offenses
committed and the penalties awarded, which report shall
be filed in the office of the judge-advocate of the depart-
ment, and may be destroyed when no longer of use. Sec.
4, ibid.
* * * * * * *
This act shall take effect sixty days after its passage.2
Sec. 7, ibid.
Regimental ART. 81. Every officer commanding a regiment or corps
c°juiy 17, 1862, c. shall, subject to the provisions of article eighty, be com-
201, s. 7, v. 12, p. J . v .
598. petent to appoint, for his own regiment or corps, courts-
1 For an extension of the power of this court to punish, see article 83, post.
2 This enactment replaces the Eightieth article of war, which was expressly repealed
by section 2 of the act of June 18, 1898 (30 Stat. L., 483).
MILITAKY LAWS OF THE UNITED STATES. 1007
martial, consisting of three officers, to try offenses not
capital.1
AET. 82. Every officer commanding a garrison, fort, or Garrison courts.
other place, where the troops consist of different corps, 201, s. 7, v. i2,V
, . ' A. , . , ^ '598; Feb. 18, 1875,
shall, subject to the provisions of article eighty, be cc m- v. is, p. sis.
petent to appoint, for such garrison or other place,
courts-martial, consisting of three officers, to try offenses
not capital.2
ART. 83. Regimental and garrison courts-martial and Jurisdiction of
, ., n . ,. , field officers',
summary courts detailed under existing laws to try en- regimental, and
.. . , .. . garrison courts.
listed men shall not have power to try capital cases or July 17, 1862, c.
. . j /E f 11 1_ 201' S- 7' V- 12' P-
commissioned, officers, but snail nave power to award pun- 598.
^ AY , . , March 2, 1901,
ishment not to exceed confinement at hard labor for three v. si, P. 951.
months or forfeiture of three months' pay, or both, and
in addition thereto, in the case of noncommissioned offi-
cers, reduction to the ranks, and in the case of first-class
privates reduction to second-class privates: Provided,
That a summary court shall not adjudge confinement and
forfeiture in excess of a period of one month, unless the
accused shall before trial consent in writing to trial by
said court, but in any case of refusal to so consent the trial
may be had either by general, regimental, or garrison
court-martial, or by said summary court, but in case of
trial by said summary court without consent as aforesaid,
the court shall not adjudge confinement or forfeiture of
pay for more than one month.3 Act of March®, 1901 (31
Stat. L., 951}.
ART. 84. The judge-advocate shall administer to each . oath of mem-
, „ bers of courts-
member of the court, before they proceed upon any trial, BaJ{JllL7 1892 v
the following oath, which shall also be taken by all mem- 27« P- 278'
» . 84 Art;* IT ftr*
bers of regimental and garrison courts-martial: " You,
A B, do swear that you will well and duly try and deter-
mine^ according to evidence, the matter now before you,
between the United States of America and the prisoner to
be tried, and that you will duly administer justice, with-
out partiality, favor, or affection, according to the pro-
visions of the rules and articles for the government of the
armies of the United States^ and if any doubt should arise,
not explained by said articles, then according to your con-
science, the best of your understanding, and the custom of
1See the title "Regimental courts-martial," in the chapter entitled MILITARY
TRIBUNALS. The eightieth article was repealed by the act of March 2, 1901 (31 Stat.
L., 951).
2 See the title " The summary court," in the chapter entitled MILITARY TRIBUNALS.
3 See also, as to the power of the summary court to punish, the act of June 18, 1898
(30 Stat. L. 483), article 80, ante.
1008 MILITAEY LAWS OF THE UNITED STATES.
war in like cases ; and you do further swear that you will
not divulge1 the sentence of the court until it shall be pub-
lishedby the proper authority, except to the judge-advocate;
neither will you disclose or discover the vote or opinion of
any particular member of the court-martial, unless requi/red
to give evidence thereof, as a witness, by a court of justice*
in a due course of law. /So help you God" 3 Act of July
07, 1898 (27 Stat. L., 278).
1 The only case which has been met with in which the members of a court-martial
have been required to disclose their votes by the process of a civil court is that of In
re Mackenzie, 1 Pa. Law J. R., 356, in which the members of a naval court-martial
were compelled, against their objections, to state their votes as given upon the find-
ings at a particular trial.
*In the present corresponding British article the words "or a court-martial" are
added after the words "a court of justice."
3 This article makes the administering to the court of the form of oath thereby pre-
scribed an essential preliminary to its entering upon a trial (a). Until the oath is
taken as specified, the court is not qualified "to try and determine." The arraign-
ment of a prisoner and reception of his plea — which is the commencement of the
trial — before the court is sworn is without legal effect. The article requires that the
oath shall be taken not by the court as a whole, but by "each member." Where,
therefore, all the members are sworn at the same time, the judge-advocate will pref-
erably address each member by name, thus: " You, A B, C D, E F, etc., do swear,"
etc. A member added to the court, after the members originally detailed have been
duly sworn, should be separately sworn by the judge-advocate in the full form pre-
scribed by the article; otherwise he is not qualified to act as a member of the court.
A member who prefers it may be affirmed instead of sworn. See section 1, Revised
Statutes. Dig. Opin. J. A. G., par. 225.
The members are sworn to try and determine the matter before them at the time
of the administering of the oath. In a case, therefore, where, after the court had
been sworn and the accused had been arraigned and had pleaded, an additional
charge, setting forth a new and distinct offense, was introduced into the case, and the
accused was tried and convicted upon the same, held that as to this charge the pro-
ceedings were fatally defective, the court not having been sworn to try and deter-
mine such charge (o). Ibid., par. 226.
It is a departure from the engagement expressed in the body of the oath — to try
and determine according to evidence, and administer justice according to the Articles
of War, etc. — for a court-martial to determine a case either upon personal knowledge
of the facts possessed by the members and not put in evidence, or according to the
private views of justice of the members independently of the provisions of the
code (c). Ibid., 97, par. 3.
Where the vote of each member of the court upon one of several specifications
upon which the accused was tried was stated in the record of trial, held that such
statement was a clear violation of the oath of the court, though it did not affect the
validity of the proceedings or sentence. A statement in the record of trial to the
effect that all the members concurred in the finding or in the sentence, while it does
not vitiate the proceedings or sentence, is a direct violation of the oath prescribed
by this article. See sixty-second article. Ibid., par. 227.
The disclosing of the finding and sentence to a clerk by permitting him to remain
with the court at the final deliberation and enter the judgment in the record is a
violation of the oath and a grave irregularity, though one which does not affect the
validity of the proceedings or sentence. Ibid., par. 229.
The words "a court of justice" are deemed to mean a civil or criminal court of
the United States, or of a State, etc., and not to include a court-martial. A case can
hardly be supposed in which it would become proper or desirable for a court-martial
to inquire into the votes or opinions given in closed court by the members of another
similar tribunal. Ibid., 98, par. 6.
a See, in this connection, G. O. 16, H. A., 1880, which, in directing that judge-advocates shall be
detailed for regimental and garrison, as well as general, courts-martial, rescinds G. O. 49 of 1871, pre-
scribing a special form of oath for the former courts, and thus provides for their taking the due and
regular oath recited in article 84.
6 See G. C. M. O. 39, War Department, 1867; G. 0. 13, Northern Department, 1864.
cCompare G. O. 21, Department of the Ohio, 1866; G. C. M. O. 41, Department of Texas, 1874.
MILITARY LAWS OF THE UNITED STATES. 1009
ART. 85. When the oath has been administered to the
members of a court-martial, the president of the court shall 85 Art- War*
administer to the judge-advocate, or person officiating as
such, an oath in the following form:
4 You, A J2, do swear that you will not disclose or dis-
cover the vote or opinion of any particular member of the
court-martial, unless retired to give evidence thereof, as
a witness, by a court of justice, in due course of lawj nor
divulge the sentence of the court to any but the proper
authority until it shall be duly disclosed by the sam^e. So
kelp you God."
ART. 86. A court-martial may punish, at discretion, any cou?^™131 °f
person who uses any menacing words, signs, or gestures,
in its presence, or who disturbs its proceedings by any riot
or disorder.1
ART. 87. All members of a court-martial are to behave m^^gvior of
with decency and calmness. 87 Art- War-
ART. 88. Members of a court-martial may be challenged prisone?nges by
by a prisoner, but only for cause stated to the court. The 88 Art- War-
court shall determine the relevancy and validity thereof,
1 Contempts, broadly considered, are of two kinds — direct and constructive. Con-
tempts committed in the presence of the court, sitting judicially, or so near as to
interfere with the orderly course of procedure, are direct contempts. Contempts
committed, not in presence of the court, but which tend, by their operation, to
interrupt, obstruct, embarrass, or prevent the due and orderly administration of
justice, are constructive contempts. Indianapolis Water Co. v. The American Straw-
board Co., 75 Fed. Rep., 972. Over the former, direct contempts courts-martial are
endowed with jurisdiction by the terms of the eighty-sixth Article of War; in
respect to the latter, constructive contempts, when committed by persons not sub-
ject to military jurisdiction, courts-martial are without jurisdiction.
The power of a court-martial to punish, under this article, being confined practi-
cally to acts done in its immediate presence, (a) such a court can have no authority
to punish as for a contempt a neglect by an officer or soldier to attend as a witness
in compliance with a summons, (b) Dig. Opin. J. A. G., par. 230.
A court-; iiartial has none of the common-law power to punish for contempt vested
in the ordinary courts of justice, but only such authority as is given it by this article.
Thus, lidd that a court-martial would not be authorized to punish as for a contempt,
under this article (or otherwise), a civilian witness duly summoned and appearing
before it. but, when put on the stand, declining (without disorder) to testify. Ibid.,
par. 231. See also XVIII Opin. Atty. Gen., 278.
Where a contempt within the description of this article has been committed, and
the court deems it proper that the offender shall be punished, the proper course
is to suspend the regular business, and, after giving the party an opportunity to be
heard, explain, etc.,(c) to proceed, if the explanation is insufficient, to impose a
punishment, resuming thereupon the original proceedings. The action taken is
properly summary, a formal trial not being called for. Close confinement in quarters
or in the guardhouse during the trial of the pending case, or forfeiture of a reason-
able amount of pay, has been the more usual punishment. Instead of proceeding
against a military person for a contempt in the mode contemplated by this article,
the alternative course may be pursued of bringing him to trial before a new court
on a charge for a disorder under article 62. (d) Ibid., par. 233.
alt was held by the teecretary of War in the case of Lieutenant-Colonel Backenstos (G. O. 14, War
Department, 1860) that a court-martial had, under this article, no power to punish its own members.
b As to the power of courts of inquiry to punish for contempt, see one hundred and fifteenth article
and note.
cSee G. C. M. O. 37, Fourth Military District, 1868.
d Compare Samuel, 634; Simmons, sec. 434. The latter course has not infrequently been adopted in
our practice.
22924—08 - 64
1010 MILITARY LAWS OF THE UNITED STATES.
and shall not receive a challenge to more than one member
at a time. 1
1 This article authorizes the exercise of the right of challenge before all courts
except field officers' courts and summary courts. These courts are not subject to
be challenged, because, being composed of but one member, there is no authority
provided which is competent to pass upon the validity of the challenge. Ibid'
par. 234.
It is ordinarily a sufficient ground of challenge to a member that he is the author
of the charges and is a material witness in the case. The mere fact that he is to be
a witness is not, in general, to be held sufficient. Ibid., par. 235
The mere fact that a member signed or formally preferred the charges is not suffi-
cient ground of objection, since he may have done so ministerially or by the order
of a superior. But where a member, upon investigation or otherwise, has initiated
or preferred the charges as accuser, or as prosecutor has caused them to be brought to
trial, he is properly subject to challenge. Thus, that a member had originated and
preferred the charge for a disobedience of his own order was held good cause of
challenge. So in a case of a trial $or an assault upon an officer, the fact that the
officer upon whom the assault was committed, and who was the prosecuting witness,
was a member of the court was held to constitute complete cause of challenge to
him as member. Ibid., -par. 236.
That a member is the regimental or company commander of the accused does not
per Be constitute sufficient ground of challenge. But such ground may exist where
the commander has preferred the charges or where the relations between him and
the accused have been such as to give rise to a presumption of prejudice. Ibid.,
par. 237.
Where a member, before the trial, has expressed an opinion, based upon a knowl-
edge of the facts, that the accused would be convicted whichever way he might
plead, held that he had clearly prejudged the case and that the court should have
sustained an objection taken to him by the accused, although upon being challenged
he declared that he was without predjudice. (a) Ibid., par. 238. In re Bird, 2
Sawyer, 33.
A member, on being challenged for prejudice, declared that he did not consider
the accused (an officer) a gentleman, and would not associate with him, and that be
had stated so; but he added at the same time that he was not prejudiced for or
against him. Held, especially as one of the charges was "conduct unbecoming an
officer and a gentleman," that the challenge was improperly overruled by the court.
Dig. Opin. J. A. G , par. 239.
It is not good ground of challenge to a member that he is junior in rank to the accused,
nor is it sufficient ground that the member will gain a step or "file" in the line of
promotion if the accused is dismissed. It is, however, a sufficient cause of challenge
to a member that if the accused (an officer) ba convicted and sentenced to be dis-
missed, the member will be forthwith entitled to promotion. Ibid., par. 240.
Held sufficient ground of challenge to a member of a court-martial that he had pre-
viously taken part in an investigation of the same case before a court of inquiry,
though such court did not express a formal opinion. Ibid. , par. 24 1 .
Held good ground of challenge to a member of a court-martial in a case of alleged
theft by a soldier that such member had been a member of a previous court of inquiry
which had investigated the case and fixed the misappropriation of the property upon
the accused. Ibid., par. 242.
Held that the members of a court-martial who had composed a previous court by
which the same accused had been tried for the same act, though under a different
charge, were all subject to be set aside on challenge. Ibid., par. 243.
It is not necessary (though usual and proper) for a member to withdraw from the
court room on being challenged and pending the deliberation on the objection. Ibid. ,
par. 244.
Courts should be liberal in passing upon challenges, but should not entertain an
objection which is not specific, or allow one upon its mere assertion by the accused,
without proof and in the absence of any admission on the part of the member, (b)
A positive declaration by the challenged member to the effect that he has no preju-
aSee this opinion as adopted by the President in G. C. M. O. (5(1, Headquarters of Army, 1879.
5 See G C M. O. 66, War Department, 1875. The challenge, the allowance of which by the court in
General Twiggs's case was disapproved in G. O. 4, War Department, 1858, was simply a general objection
to the member by the accused on account of "some unpleasant circumstances growing out ot their
official relations," no specific allegation of bias being made and the member himself expressly dis-
claiming any feeling of prejudice.
MILITARY LAWS OF THE UNITED STATES. 1011
dice or interest in the case will, in general, in the a' sence of material evidence in
support of the objection, justify the court in overruling it. Ibid., par. 245.
Where, before arraignment, the accused (an officer), without having personal
knowledge of the existence of ground of challenge to a member, had credible hearsay
information of its existence, held that he should properly have raised the objection
before the members were sworn, and that the court was not in error in refusing to
allow him to take it at a subsequent stage of the trial. Ibid., par. 246.
The fact that a sufficient cause of challenge exists against a member, but through
ignorance of his rights, is not taken advantage of by the accused, or if asserted is
improperly overruled by the court, can affect in no manner the validity in law of the
proceedings or sentence, though it may sometimes properly furnish occasion for a
disapproval of the proceedings, etc., or a remission in whole or in part of the sen-
tence, (a) Ibid., par. 247.
At the trial of an officer in 1853, the accused challenged a member of the court
"for bias, prejudice, and malice." The challenged member thereupon stated "that
he had no prejudice or bias against the accused which could in the remotest degree
interfere with his doing justice in the case," but, "being challenged, he requested to
be relieved from sitting on the court," which the court refused, and overruled the
challenge. The accused then requested that the member might be put on his voir
dire in order that he might examine him as to the extent of any prejudice he might
.entertain, which application the court also refused. This refusal of the right of an
accused person to place a challenged member on his voir dire, in order to ascertain
whether the grounds of challenge advanced by him were or were not sufficient, was
disapproved by the Secretary of War upon the ground that "an- accused is now
allowed in all cases, for the better security of an impartial trial, to show the mind of
the juror by examining him before the court, and the only exception is where the
cause of the challenge goes to the disgrace or discredit of the juror." G. O. No. 21,
WarDept., of 1853.
The article impos*es no limitation upon the exercise of the right of challenge other
than that "more than one member shall not be challenged at a time." Thus while
the panel, or the court as a whole, Is not subject to challenge, yet all the members
may be challenged provided they are challenged separately. The article contains no
authority for challenging the judge-advocate. Dig. Opin. J. A. G., par. 248.
In the case of an enlisted man tried in 1875, the judge-advocateof the court was the
principal witness against the prisoner and was directly interested in his conviction.
In this case it was remarked by the reviewing officer (the Secretary of War) that
"it was not contemplated that a prisoner would be brought to trial before this court
on charges which raised the question whether its judge-advocate had not himself
been guilty of official misconduct. But such was the fact in this case. The judge-
advocate had a personal interest in the conviction of the prisoner and was also the
principal witness against him." Under such circumstances the officer should have
applied to the proper authority to be relieved from duty as judge-advocate. The
proceedings were disapproved.' G. C. M. O. No. 41, War Dept, 1875; see also G.
C. M.O. 66, 1875.
The court of itself can not excuse a member in the absence of a challenge. A
member not challenged but considering himself disqualified can be relieved only
by application to the convening authority. -Dig. Opin. J. A. G., par 249.
An accused challenged the entire court on the ground that the convening officer
was "accuser." Held properly overruled; the array can not be challenged at mili-
tary law. The article declares that "the court * * shall not receive a challenge
to more than one member at a time. " Ibid., par. 250.
A court-martial can not relieve or "excuse" a member except upon a challenge
duly interposed and sustained under this article. The fact that a member has been
absent from the court for several days and has not heard the testimony meanwhile
taken constitutes no legal ground for excusing him by the court. Ibid., par. 251.
An accused objected to a member on the ground that some time before he had had
a disagreement with the member and thought that he "might be prejudiced. " The
member declared that he was conscious of no prejudice whatever, but that, on the
aSee opinion of the Attorney- General of January 19, 1878 (XV Opins., 432), in which the opinion,
expressed by the Judge- Ad vocate-General in the most recent of the cases upon which this paragraph
is based— that the fact that one of the charges upon which the accused was convicted was preferred
by a member of the court who also testified as a witness on the trial (but who, though clearfvsubiect
toobiection, was not challenged by the accused) could not affect the validity of thl sentence of dis-
missal after the same had been duly confirmed— is concurred in by the Attornev-General. And to a
similar effect see Keyesr. U. S., 15 Ct. Cls., 532.
In G. C. M. O. 88, Department of Dakota, 1878. the point is noticed that where a challenge interposed
by the accused has been improperly disallowed a subsequent plea of guilty is not to be treated ;i> a
waiver of the advantage to which he may be entitled by reason of the improper ruling.
1012 MILITARY LAWS OF THE UNITED STATES.
in|rmStlrstand" ^KT- 89- When a prisoner, arraigned before a general
89 Art. war. court-rnartial, from obstinacy and deliberate design, stands
mute, or answers foreign to the purpose, the court may
proceed to trial and judgment as if the prisoner had
pleaded not guilty.
cated prosecutor ART. 90. The judge-advocate, or some person deputed
prisoner nsel for ^v nmi> or by ^ne general or officer commanding the Army,
90 Art. war. detachment, or garrison, shall prosecute in the name of the
United States, but when the prisoner has made his plea, he
shall so far consider himself counsel for the prisoner as to
object to any leading question to any of the witnesses, and
to any question to the prisoner the answer to which might
tend to criminate himself.
catetog\vithdraw Whenever a court-martial shall sit in closed session the
SoS closed ses" judge-advocate shall withdraw, and when his legal advice
isllfv^T^p^m or his assistance in referring to recorded evidence is re-
quired it shall be obtained in open court. Section 2, act
of July 27, 1892 (27 Stat. Z., 278).
tiorfS oaths. rt' That judge-advocates of departments ^and of courts-
W2*v*y??p7vrs martial, and the trial officers of summary courts, are hereby
authorized to administer oaths for the purposes of the ad-
ministration of military justice, and for other purposes of
military administration. Section ^ act jf July 27, 1892
(27 Stat. Z., 278).
M«5°8iti:i868 c ART. 91. The depositions of witnesses residing beyond
736s' 27>>v' 12> p' tne limits of the State, Territory, or district in which any
91 Art. war. militaiy court may be ordered to sit, if taken on reasonable
notice to the opposite party and duly authenticated, may be
read in evidence before such court in cases not capital.1
contrary, his feelings toward the accused were friendly. Held that the court erred
in sustaining the challenge. Ibid., par. 252.
The accused wrere Indian scouts, charged with mutiny. Some of the members of
the court, though disclaiming any prejudice against the accused personally, were
aware that they were present at the outbreak, and were fully apprised, from their
own personal presence or knowledge of the circumstances, that the mutiny, whjch
had involved homicide, constituted a most aggravated offense of the class. Held
that as these members could scarcely avoid applying their impressions to the accused
when shown to be connected with the disorder, they would fairly have been subject
to objection as triers. Ibid., par. 253.
A mere general opinion in regard to the impropriety of acts such as those charged
against the accused, unaccompanied by any opinion as to his guilt or innocence on the
charges, is not a sufficient ground of objection under this article. Ibid., par. 254.
*A deposition can not be read in evidence in a capital case as in a case of a viola-
tion of article 21, or a case of a spy, or one of desertion in time of war; otherwise in
a case of desertion in time of peace. Nor is the deposition admissible of a witness
who resides in the State, etc., within which the court is held, except by consent.
Dig. Opin. J. A. G., par. 256.
In a case tried in 1875 the court refused to allow the accused time to confer with his
counsel for the purpose of preparing cross-interrogatories to be propounded to wit-
nesses whose depositions were to be taken at the instance of the prosecution. As the
defense was not prejudiced by the error of the court, the findings were Approved.
The most ample opportunity should always be afforded the party on trial for such
purpose. G. C. M. 0. No. 26, War Dept., 1875.
MILITARY LAWS OF THE UNITED STATES. 1013
ART. 92. All persons who give evidence before a court- ne2*th of wit"
martial shall be examined on oath, or affirmation, in the
following form: "You swear (or affirm) that the evidence
you shall give, in tlie case now in hearing, shall be the
truth, the whole truth^ and nothing hut the truth. 80 help
you 6W."1
ART. 93. A court-martial shall for reasonable cause, K^nacrf'
grant a continuance to either party, for such time, and as
often, as may- appear to be just: Provided, That if the
prisoner be in close confinement, the trial shall not be
delayed for a period longer than sixty days.2
ART. 95. Members of a court-martial, in giving their jn°.rder of vot*
votes, shall begin with the youngest in commission. 95 Art, war.
ART. 96. No person shall be sentenced to suffer death sentence of
except by the concurrence of two-thirds of the members of 96 Art, war.
a general court-martial, and in the cases herein expressly
mentioned.3
1 This article prescribes a single specific form of oath to be taken by all witnesses.
The Constitution, however (article 1 of amendment), has provided "that Congress
shall make no law prohibiting the free exercise of religion. Where, therefore, the
prescribed form is not in accordance with the religious tenets of a witness, he should
be permitted to be sworn according to the ceremonies of his own faith or as lie may
deem binding on his conscience. ( a) Dig. Opin. J. A. G., par. 274, note 2.
The article does not prescribe by whom the oath shall be administered. By the
custom of the service it is administered by the judge-advocate. (And see now the
provision of the act of July 27, 1892, sec. 4.) When the judge-advocate himself
takes the witness stand, he is properly sworn by the president of the court, Ibid.,
par. 274.
A witness wrho has once been sworn and has testified is not required to be resworn
on being subsequently recalled to the stand by either party. The reswearing, how-
ever, of such a witness will not affect the legal validity of the proceedings or sentence.
Ibid., par. 274, note 2.
2 In making an application for a continuance or postponement under this article,
on account of the absence of a witness, the form of affidavit prescribed in paragraph
887 of the Army Regulations should in general be substantially observed. But while
the court may refuse the application if this regulation be not followed, it may, in its
discretion, refrain from insisting that the same be strictly complied with, and accept
a modified form. (6) It should, however, in all cases require that the desired evi-
dence appear or be shown to be material, and not merely cumulative, (c) and that to
await its production will not delay the trial for an unreasonable period. It should
also, in general, before granting the continuance, be assured that the absence of the
witness is not owing to any neglect on the part of the applicant. This feature, how-
ever, will not be so much insisted upon in military as in civil cases, (d} Ibid., 108, par. 1.
See, also, the title "Continuances" in the chapter entitled MILITARY TRIBUNALS.
Article 94 w^as repealed by the act of March 2, 1901 (31 Stat. L., 951).
3 Though it has sometimes been viewed otherwise, it is deemed quite clear upon
the terms of the present article that it is not necessary to the legality of a death
sentence that two-thirds of the court should have concurred in the finding as well
as the sentence, (e) . Further, in the absence of any requirement to that effect in the
a See 1 Greenl. Ev., sec. 371; O'Brien, 260.
bit is not the practice of courts-martial to admit counter affidavits from the opposite party as to what
the absent witness would testify. And as to the civil practice, see Williams v. State, 6 Nebraska, 334.
cCompare People v. Thompso'n, 4 Cal., 238; Parkers. State, 55 Miss., 414.
d A military accused can not be charged with laches in not procuring the attendance at his trial of
a witness who is prevented from being present by superior military authority. Thus in a case in G.
O. 63, Department of Dakota, 1872, an accused soldier was held entitled to a continuance till the
return of material witnesses then absent on an Indian expedition.
e Compare Heighten, 120.
1014 MILITARY LAWS OF THE UNITED STATES.
ART- 97. No person in the military service shall, under
; l* 4> v< 12> the sentence of a court-martial, be punished by confine-
97 Art. war. menf; {n a penitentiary, unless the offense of which he may
be convicted would,- by some statute of the United States,
or by some statute of the State, Territory, or District in
which such offense may be committed, or by the common
law, as the same exists in such State, Territory, or Dis-
trict, subject such convict to such punishment.1
article, it is not deemed essential to the validity of the sentence that the record
should state the fact that two-thirds of the court concurred therein. The practice,
however, has been to add such a statement. (a) Ibid., 112, par. 1.
A sentence of death imposed by a court-martial, upon a conviction of several dis-
tinct offenses, will be authorized and legal if any one of such offenses is made capi-
tally punishable by the Articles of War, although the other offenses may not be so
punishable. Ibid., par. 285.
A court-martial, in imposing a death sentence, should not designate a time or place
for its execution, such a designation not being within its province, but pertaining
to that of the reviewing authority. If it does so designate, this part of the sentence
may be disregarded and a different time or place fixed by the commanding general.
Ibid., par. 286.
Where a death sentence imposed by a court-martial has been directed by the proper
authority to be executed on a particular day, and this day, owing to some exigency
of the service, has gone by without the sentence being executed, it is competent for
the same authority, or his proper superior, to name another day for the purpose,
the time of its execution being an immaterial element of this punishment. (6) Ibid.,
par. 288.
1 This article, by necessary implication, prohibits the imposition of confinement in
a penitentiary as a punishment for offenses of a purely or exclusively military char-
acter — such as desertion, for example, (c) Ibid., par. 288.
A sentence of penitentiary confinement in a case of a purely military offense is
wholly unauthorized and should be disapproved. Effect can not be given to such a
sentence by commuting it to confinement in a military prison or to some other pun-
ishment which would be legal for such offense. Nor in a case of such an offense can
a severer penalty, as death, be commuted to confinement in a penitentiary. Ibid.,
par. 289.
Nor can penitentiary confinement be legalized as a punishment for purely military
offenses by designating a penitentiary as a "military prison" and ordering the con-
finement there of soldiers sentenced to imprisonment on conviction of such offenses.
Ibid., par. 290.
An offense charged as " conduct to the prejudice of good order and military dis-
cipline," which, however, is in fact a larceny, (d) embezzlement, violent crime, or
other offense made punishable with penitentiary confinement by the law of the
State, etc., may legally be visited with this punishment. Ibid., par. 291.
The term "penitentiary" as employed in this article has reference to civil prisons
only, as the penitentiary of the United States or District of Columbia at Washington,
a In the case of an enlisted man, tried by a general court-martial for a violation of the twenty-first
Articleof War, the record failed to show affirmatively that two-thirds of the members concurred in the
imposition of the death sentence; the sentence was therefore disapproved by the President. G. O. 172,
A. G. O., 1862. See, also, G. O. 18, A. G. O., 1863.
b It was held by the Supreme Court in Coleman v. Tennessee (7 Otto, 519, 520) that a soldier who
had been convicted of murder and sentenced to death by a general court-martial in May, 1865. but
the execution of whose sentence had been meanwhile deferred, by reason of hisescape and the pend-
ency of civil proceedings in his case, might at the date of the ruling (October term, 1878) " be delivered
up to the military authorities of the United States, to.be dealt with as required by law."
More recently (May, 1879; XVI Opins.,349) it has been held in this case by the- Attorney-Genera] that
the death sentence might legally be executed notwithstanding the fact that the soldier had mean-
while been discharged from the service, .such discharge, while formally separating the party from
the Army, being viewed as not affecting his legal status as a military convict. But, in view of all the
circumstances of the case, it was recommended that the sentence be commuted to imprisonment for
life or a term of years.
cSee G. O. 4, War Department, 1867; also the action taken in cases in the following general orders:
G. O. 21, Department of the Platte, 1866: G. O. 21, ibid., 1871; G. O. 44, Eighth Army Corps, 1862; G. C.
M. O. 34, 35, 43, 46, 72, 73, Department of the Missouri, 1870.
d In a case of larceny the court should inform itself as to whether the value of the property stolen
be not too small to permit a penitentiary confinement for the offense. under the local law. See G. O.
44, Eighth Army Corps, 1862; G. C. M. O. 63, Department of the Platte, 1872.
MILITARY LAWS OF THE UNITED STATES. 1015
ART. 98. No person in the military service shall be pun-
ished by flogging, or by branding, marking, or tattooing
On the body. c. 316, s. 2, v. 17, p. 261. 98 Art. War.
the public; prisons or penitentiaries of the different States, and the "penitentiaries
erected by the United States" (see section 1892, Revised Statutes) in most of the
Territories. The military prison at Leavenworth is not a penitentiary in the sense
of the article. The term" "State (or State's) prison" in a sentence is* equivalent to
penitentiary. Ibid., par. 292.
A military prisoner duly sentenced or committed to a penitentiary 1 >ecomes subject
to the government and rules of the institution. Ibid., par. 293.
Where a soldier is sentenced to be confined in a penitentiary, the proper reviewing
authority may legally designate for the execution of the punishment any State or
Territorial penitentiary within his command. Where there is no such penitentiary
available for the purpose, or desirable to be resorted to, he will properly submit the
case to the Secretary of War for the designation of a proper penitentiary. Ibid., 114,
par. 7
A court-martial, in imposing by its sentence the punishment of confinement in a
penitentiary, is not required to follow the statute of the United States or of the State,
etc., as to the term of the confinement. It may adjudge, at its discretion, a less or a
greater term than that affixed by such statute to the particular offense. At the same
time the court will often do well to consult the statute, as indicating a reasonable
measure of punishment for the offense. Ibid., par. 294.
Where a court-martial specifically sentences an accused to confinement in a "mili-
tary prison," he can not legally be committed to a penitentiary, although such form
of imprisonment would be authorized by the character of his offense. But where a
sentence of confinement is expressed in general terms, as where it directs that the
accused shall be confined ' ' in such place or prison as the proper authority may order, ' '
or in terms to such effect, held that the same may, under this article, legally be exe-
cuted by the commitment of the party to a penitentiary, to be designated by the
reviewing officer or Secretary of War, provided, of course, the offense is of such a
nature as to warrant this form of punishment. Ibid., par. 295.
Held that penitentiary confinement could not legally be adjudged upon a conviction
of a violation of the twenty-first article, alleged in the specification to have consisted
,in the lifting up of a weapon (a pistol) against a commanding officer and discharging
it at him with intent to kill. By charging the offense under this article the Govern-
ment elected to treat it as a purely military offense, subject only to a military punish-
ment. So, upon a conviction of joining in a mutiny, in violation of article 22, held
that a sentence of confinement in a penitentiary would not be legal although the
mutiny involved a homicide, set forth in the specification as an incidental aggravat-
ing circumstance. To have warranted such a punishment in either of these cases
the Government should have treated the act as a "crime," and charged and brought
it to trial as such under article 62. Ibid., par. 296.
Where the act is charged as a crime under article 62, and charge and specification
taken together show an offense punishable with confinement in a penitentiary by the
law of the locus of the crime, the sentence may legally adjudge such a punishment.
So held in a case where charge and specification together made out an allegation of
perjury under section 5392, Revised Statutes. Ibid., par. 297.
"Obtaining money under false pretenses" is punishable by confinement in a peni-
tentiary by the laws of Arizona. A sentence of court-martial imposing this punish-
ment, on conviction of an offense of this description committed in this Territory,
charged an a crime under article 62, held authorized by article 97. Ibid., par. 298.
A conviction of a larceny of property of such slight value as not to authorize this
punishment under the local law would not warrant a sentence of confinement in a
penitentiary. In a case of larceny the court should inform itself as to whether the
value of the property stolen be not too small to permit of penitentiary confinement
for the offense under the law of the State, etc. (a) Ibid., 115, par. 13.
A punishment of confinement in a penitentiary, where legal, may be mitigated to
confinement in a military prison or at a military post. Ibid., par. 299.
A discharged soldier, serving a sentence of confinement in a State or Territorial
penitentiary, still remains under military control, at least so far as that his sentence
may, by competent military authority, or by the President, be remitted, or may be
mitigated — as, for example, to confinement in a military prison or at a military post.
Ibid., par. 300.
i See G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 63, Department of the Platte, 1872.
1016 MILITARY LAWS OF THE UNITED STATES.
^jg! ART. 99. No officer shall be discharged or dismissed
C6
99 Art. war. from the service, except by order of the President, or by
i76Uisy6 V^J?' p' sentence of a general court-martial; and in time of peace
no officer shall be dismissed, except in pursuance of the
sentence of a court-martial, or in mitigation thereof.1
1 Dismissal by Executive order is quite distinct from dismissal by sentence. The
latter is a punishment; the former is removal from office, (a) The power to dismiss,
which, as being an incident to the power to appoint public officers, had been regarded
since 1789 as vested in the President by the Constitution, (6) was for the first time in
1866 (by the act of July 13 of that year, reenacted in the second clause of the pres-
ent ninety-ninth article of war and in section 1229, Revised Statutes) , expressly
divested by Congress in so far as respects its exercise in time of peace, (c) By the
statute law it is now authorized only in time of war. During the late war it was
exercised in a great number of cases, sometimes for the purpose of summarily rid-
ding the service of unworthy officers, sometimes in the form of a discharge or muster-
out of officers whose services were no longer required. The distinction between
this species of dismissal and dismissal by sentence is illustrated by the fact that the
former has, with the sanction of legal authority, been repeatedly ordered in caaes
where a court-martial has previously acquitted the officer of the very offenses on
account of which the summary action has been resorted to. (d) Dig. Opin. J. A. G.,
par. 1203.
The Executive, in summarily dismissing an officer, can not at the same time deprive
him of pay due. Nor can the right of an officer to his pay, for any period prior to a
summary dismissal ordered in his case, be divested by dating back of the order of
dismissal. Such an order can not be made to relate back so as to affect the status
or rights of the officer as they existed before the date of the taking effect of the
dismissal. Ibid., par. 1213.
A summary dismissal "by order of the Secretary of War" is in law the act of the
President, (e) Ibid., par. 1205.
A department or army commander can have, of course, no authority to summarily
dismiss or discharge an officer from the military service. But where, in a case of a
regular officer, this authority was in fact exercised, and the President, treating his
office as vacant, proceeded to fill the vacancy by a new appointment, held that he had
made the dismissal his own act and legalized the same. (/) So where (in 1863) an
officer of volunteers was dismissed by the order of an army commander, which was
never ratified in terms by the President, but a successor, appointed to the vacancy by
the governor of the State, was accepted and mustered in by the United States, held
(in 1880) that the dismissal was to be regarded as having been substantially ratified
and legalized. So an unauthorized dismissal, by order of a regular officer, may be in
effect made operative by a subsequent appointment and confirmation of a successor,
as in Blake's case. Ibid., par. 1206.
A summary dismissal of an officer does not properly take effect until the order
of dismissal or an official copy of the same is delivered to him, or he is otherwise
officially notified of the fact of the dismissal. Ibid., par. 1204.
Held that it could not affect the operation of an order summarily dismissing an
officer as "second lieutenant" that, before its being communicated to him by being
promulgated to the regiment, he had become by promotion a first lieutenant. Ibid.,
par. 1211.
A dismissal of an officer by Executive order does not operate to disqualify him for
reappointment to military office, or for appointment to civil office under the United
States. Ibid., par. 1212.
There can be no revocation of a duly executed order of dismissal, however unmerited
or injudicious the original act may be deemed to have been. For, distinct as dis-
missal by order is, in its nature, from dismissal by sentence (see section 1, ante), the
effect of the proceeding in divesting the office is the same in each case. An officer
dismissed by an order, though his dismissal may have involved no disgrace, is
assimilated to an officer dismissed by sentence in so far that he is completely relegated
a See VII Opins. Att. Gen., 251.
bSee, as among the principal authorities on this subject, Commonwealth ?'. Bussier, 5 Sergt. &
Rawle, 461; Ex parte Hennen, 13 Peters, 258, 259; United States v. Guthrie, 17 Howard, 307; IV Opins.
Att. Gen., 1, 609-613; VI id.. 5-6; VII id., 251; VIII id.. 230-232; XII id., 424-426; Sergeant, Const, Law.,
373; 2 Story's Corns., sec. 1537, note; 1 Kent's Corns., 310; 2 Marshall's Washington, 162.
cSee XVI Opins. Att. Gen., 315.
dSee XII Opins. Att. Gen., 427.
eSee XII Opins. Att. Gen., 421; McElrath v. United States, 12 Ct. Cls. 202.
/See opinion of Att. Gen. (XVI Opins., 298), noted under article 106.
MTLTTAEY LAWS OF THE UNITED STATES. 1017
ART. 100. When an officer is dismissed from the service 0^^^^
for cowardice or fraud the sentence shall further direct |^ucdowardice or
that the crime, punishment, name, and place of abode of 10°Art. war.
the delinquent shall be published in the newspapers in and
about the camp, and in the State from which the offender
came or where he usually resides; and after such publica-
tion it shall be scandalous for an officer to associate with
him.1
to a civil status, having in law no nearer or other relation to the military service
than has any civilian who has never been in the Army. Thus an order assuming
to revoke a legal order of dismissal is as unauthorized as it is ineffectual. The
original dismissal is an act done which can not be undone, and the order, which is
the evidence of it, is therefore incapable of revocation or recall, (a) Nor can that
be effected indirectly which can not legally be done directly. An officer dismissed
by Executive order can not be relieved by being allowed to resign or be retired, or
by being granted an honorable discharge. For, in order to be discharged, etc. , from
the Army, he must first be in the Army, and there is but one mode by which an
officer once legally separated from the Army can be put into it, viz, by a new
appointment according to the Constitution, (b) Ibid., par. 1214.
That a summary dismissal is not revocable by an Executive order is established
law. Where an officer duly summarily dismissed in July, 1863, and subsequently
restored by an order assuming to revoke the order of dismissal, procured to be passed
by Congress in 1890 an act recognizing his restoration as legal, which, however, was
vetoed by the* President, held that his status was that of a person who had been
illegally in the military service since the date of the order of so-called revocation.
Ibid., par. 1215.
AVhere, by the direction of the President, an order was issued canceling the
muster-in of a volunteer officer on account of facts indicating that he was not a fit
person to hold a commission, held that this was a legal exercise of the authority of
summary dismissal for cause vested in the President by the act of July 17, 1862.
Ibid., par. 1210.
The President had not the same power of dismissal in the case of a volunteer officer
as he has in that of a regular officer. This for the reason that the tenure of office
of the former is for a fixed term and for a limited time only; the power to dismiss is
thus, in his case, not an incident of the appointing power, (c) But the President was
invested with a special power of dismissal of volunteer officers b v the act of Congress
of July 17, 1862. Ibid., par. 1210.
Held that the ruling in Blake's case (103 U. S. 231) was applicable, and that the
office of an army officer might legally be vacated by the appointment and commission
of a successor, although between the office of the original officer and that of the
successor there may have intervened a tenure by a third officer. Ibid., par. 1207.
Thus (1) Captain A was dismissed from his' office without legal authority; (2)
Captain B, an unassigned officer, was assigned to the captaincy of A, and held it till
his own resignation, one year and three months later; (3) Lieutenant C was then
promoted and appointed to the office and his appointment was confirmed. Held
that Lieutenant C was the legal incumbent of the office. Ibid., par. 1207.
Held that the ruling of the Supreme Court in the case of Blake was not applicable
to volunteer officers of State organizations, and that a governor of a State, who had
duly appointed a certain volunteer officer in a regiment, was not empowered to dis-
miss him by simply appointing to the same office, commissioning, and causing to be
mustered into the United States service another person. Ibid., par. 1208.
Held that it was quite evidently the intention of Congress in the act of July 15,
1870, section 12, that the commission held by the officers who remained unassigned
on January ], 1871, should cease on that day. No action on the part of a mustering
officer was required to carry the law into effect, as is shown by G. 0.1, of January 2,
1871, in which the separation from the service on January 1 of the unassigned officers
was formerly announced. Ibid., par. 1217.
lThe terms "cowardice" and "fraud" employed in this article may be considered
aSee IV Opins. Att. Gen., 124; XII id., 424-428; XIV id., 520; XV id., 658. A contrary view expressed
by the Court of Ciaims, in its earlier period, in a series of cases (see Smith r. United"states, 2 Ct. Cls.
206; Winters v. United States, 3 id., 136: Barnes v. United States, 4 id. 216- Montgomery v. United
States, 5 id'., 93) was finally practically abandoned in McElrath v. United States 12 id., 201.
&See VIII Opins. Att. Gen., 235; XII id., 421; XIII id., 5; McElrath v United States 12 Ct. Cls 202
cSee Mechen on Public Officers, p. 283, sec. 445.
1018 MILITARY LAWS OF THE UNITED STATES.
office?'snpSayn °f ART. 101. When a court-martial suspends an officer from
101 Art. war. command,1 it may also suspend his pay and emoluments for
the same time, according to the nature of his offense.2
as referring mainly to the offenses made punishable by articles 42 and 60. With
these, however, may be regarded as included all offenses in which fraud or cowardice
is necessarily involved, though the same be not expressed in terms in the charge or
specifications. Ibid., par. 301. See also In re Carter, 97 Fed. Rep., 496.
Though the injunction of the article as to the direction to be added in the sentence
should of course regularly be complied with, a failure so to comply will not affect
the validity of the punishment of dismissal adjudged by the sentence, (a) The
declaration of the article that after the publication "it shall be scandalous for an
officer to associate with" the dismissed officer, though it has in a few cases(6) been
incorporated in the sentence, is not intended to be, and should not be, so expressed
by the court. Ibid., par. 302.
1 The punishment of suspension, as imposed by sentence, is usually in the form of a
suspension from rank, or from command, for a stated term, sometimes accompanied
by a suspension from pay for the same period. Suspension from rank includes sus-
pension from command. Ibid., par. 2408.
A suspension from rank does not affect the right of the officer to his office. He
retains the same as before, and, as an officer, remains subject as before to military
control as well as to the jurisdiction of a court-martial for any military offense com-
mitted pending the term of suspension, (c) Ibid., par. 2409. "
The effect of a suspension from rank (besides detaching the officer from the per-
formance of the duties incident to his rank) is to deprive him of any right of promo-
tion to a vacancy in a higher grade, occurring pending the term of suspension, and
which he would have been entitled to receive by virtue of seniority had he not been
suspended, such right accruing to the officer next in rank. But no such loss of pro-
motion is incident to a mere suspension from command. Ibid., par. 2410.
Suspension from rank does not, however, deprive the officer of the right to rise in
files in his grade — upon the promotion, for example, of the senior officer of such
grade. The number of an officer in the list of his grade is not an incident of his
rank, but of his appointment to office as conferred and dated, and, as we have seen,
suspension does not affect the office. Moreover, loss of files is a continuing punishment,
and if held to be involved in suspension from rank, the result would be that, for an
indefinite period after the term of suspension had expired, the officer would remain
under punishment, the sentence imposed by the court being thus added to in execu-
tion, contrary to a well-known principle of military law. Ibid., par. 2411.
It is further the effect of a suspension from rank that the officer loses for the time
the minor rights and privileges of priority and precedence annexed to rank or com-
mand. Among these is the right to select quarters relatively to other officers. And
where quarters are to be selected by several officers, one of whom is under sentence
of suspension from rank, the suspended officer necessarily has the last choice. Or
rather he has no choice, but quarters are assigned him by the commander; for, being
still an officer of the Army, though without rank, he is entitled to sonte quarters.
But advised that an officer sentenced to be suspended from rank could not, because of
such suspension alone, be deprived of quarters previously duly selected, and occupied
at the time of the suspension, such a sentence not affecting a right previously accrued
and vested. Ibid., par. 2412.
Suspension from rank does not involve a status of confinement or arrest. In sen-
tencing an officer to be suspended from rank, it is,' indeed, not unusual for the court
to require that he be confined during the term of suspension to his proper station,
or that of his regiment, etc., i. e., that the sentence be executed there. Where this
is not done, while the suspended officer is not entitled to a leave of absence, it can
not affect the execution of his sentence to grant him one, and leaves of absence are
not infrequently granted under such circumstances. Ibid., par. 2414.
Suspension from rank or command does not involve a loss or authorize a stoppage
of pay for the period of suspension, (d) Pay can not be forfeited by implication.
Unless, therefore, the sentence imposes a suspension from rank (or command) " and
pay," or in terms to that effect, the suspended officer remains as much entitled to
his pay as if he had not been suspended at all, and to require him to forfeit any pay
would be adding to the punishment and illegal. Ibid., par. 2415.
2 Where, however, the suspension is in terms extended by the sentence to pay, the
a Note the action taken in the case published in G. C. M. O. 27, War Department, 1872.
b As in cases published in G. O. (A. and I. G. O.) of May 13, 1820; G. O. 168, Department of the Mis-
souri,*1865.
cSee V Opins. Att. Gen., 740; VI id., 715.
dSee IV Opins. Att. Gen., 444; VI id., 203.
MILITARY LAWS OF THE UNITED STATES. 1019
ART. 102. No person shall be tried a second time for tJ
the same offense. l c H» Art.or war.
pay id forfeited absolutely, not merely withheld. And all the pay is forfeited, unless
otherwise expressly indicated in the sentence. The forfeiture imposed by a sentence
of suspension from rank (or command) and pay for a designated term is a forfeiture
of the pay of that specific term, the suspension of the rank and that of the pay being
coincident. Under such a sentence the officer can not legally be deprived of pay due
for a period prior to the suspension. Where an officer was sentenced to suspension
from rank and pay for six months, held that his entire pay for those months was
absolutely forfeited, notwithstanding that the pay of officers of his grade was increased
by statute pending the term. Ibid., par. 2417.
A sentence of suspension from rank and pay does not affect the right of the officer
to the allowances which are no part of his pay, (a) as the allowance for rent of quar-
ters, as also the allowance for fuel, or rather right to purchase fuel at reduced rate.
Ibid., par. 2418.
The status of an officer under suspension is the same whether such suspension has
been imposed directly by sentence or by way of commutation for a more severe pun-
ishment. Thus, where a sentence of dismissal was commuted to suspension from
rank or half pay for one year, held that the officer, while forfeiting the rights and
privileges of rank and command during such term, was yet amenable to trial by
court-martial for a military offense committed pending the same. Ibid., par. 2419.
Where an officer, when under a sentence of suspension, is ordered by the com-
mander who approved the sentence, or some higher competent authority, to resume
his command or the peformance of his regular military duty, such order will, in gen-
eral, operate as a constructive remission of the punishment and thus terminate the
suspension. (6) Ibid., par. 2420.
A sentence, " to be suspended from the Military Academy," in a case of a cadet,
practically severs him from the military service as a cadet during the term of the
suspension. It is usually added in such'a sentence that at the end of such term the
party is to join the next lower class. Ibid., par. 2416.
Like dismissal, suspension takes effect upon and from notice of the approval of the
sentence officially communicated to the officer, either by the promulgation of the
same at his station, or, where he is absent therefrom by authority, by the delivery
to him of a copy of the order of approval or other form or official personal notification
of the fact of the approval. Ibid., par. 2423.
Suspension, as a punishment for a noncommissioned officer, is not authorized in
terms in article 101, nor is it contemplated in the Army Regulations. It has been
adjudged in but rare cases, (c) and can not be regarded as sanctioned by principle or
usage. Ibid., 733, par 15.
Suspension not divesting the officer of his office or commission, but simply holding
in abeyance the rights and functions attached to his rank or command, he properly
reverts, when the term of the punishment is completed, to his former rank and the
command attached thereto, and continues to hold and exercise the same as before his
arrest of trial. Ibid., 733, par 16.
Under existing usage (1892) an officer suspended by sentence from rank and com-
mand is deemed entitled to retain his quarters. But such rule may, in some cases,
work a considerable inconvenience as well as prejudice to discipline, as where, for
example, the suspended officer is a post commander, and continues, pending the
term of his suspension, and while another officer has succeeded him as commander,
to occupy the proper commanding officer's quarters. An army regulation prescrib-
ing that an officer in such a status shall not be entitled to retain or to select quarters
by virtue of rank, but shall have assigned him any quarters that are available at his
late station or elsewhere, advised as desirable to be adopted. Ibid., par 2413.
Under the ruling of the Secretary of War, as published in circular No. 3 (A. G. O. ),
1888, an officer under suspension, but not required by his sentence to be "confined
to the limits of his post," is not entitled to forage for his horse or horses during the
term of his suspension. Ibid., par. 2424.
JThe Constitution (Article V of the amendments) declares that "no person shall
be subjected, for the same offense, to be twice put in jeopardy of life or limb." The
United States courts, in treating the term "put in jeopardy " as meaning practically
tried, hold that the "jeopardy" indicated "can be interpreted to mean nothing
short of the acquittal or conviction of the prisoner and the judgment of the court
thereon. " (d) So, held that the term "tried," employed in this article, meant duly
aMcNaghten, 27.
fcSeeMcNaghten, 22.
cSee G. C. M. O. 3, Department of the East, 1872.
dU. S. v. Haskell, 4 Wash. C. C., 409. And see U. S. v. Shoemaker, 2 McLean, 114; U. S. v Gilbert, 2
Sumner, 19; U. S.v Perez, 9 Wheaton, 579; 1 Opin. Att. Gen., 294.
1020 MILITARY LAWS OF THE UNITED STATES.
ART. 103. No person shall be liable to be tried and
tioio'3 Art. war. punished by a general court-martial for any offense which
appears to have been committed more than two years
before the issuing of the order for such trial, unless, by
prosecuted, before a court-martial, to a final conviction or acquittal; and, therefore,
that an officer or soldier, after having been duly convicted or acquitted by such a
court, could not be subjected to a second military trial for the same offense except
by and upon his own waiver and consent. For, that the accused may waive objec-
tion to a second trial was held by Attorney-General Wirt in 1818, (a) and has since
been regarded as settled law. Dig. Opin. J. A. G., par. 303.
Where an officer or soldier has been duly acquitted or convicted of a specific offense
he can not, against his consent, be brought to trial for a minor offense included
therein, and an acquittal or conviction of which was necessarily involved in the
finding upon the original charge. Thus, a party convicted or acquitted of a desertion
can not afterwards be brought to trial for an absence without leave committed in and
by the same act. Ibid., par. 304.
Held that there was no "second" trial, in the sense of the article, in the following
cases, viz: Where the party, after being arraigned or tried before a court which was
illegally constituted or composed, or was without jurisdiction, was again brought to
trial before a competent tribunal; where the accused, having been arraigned upon
and having pleaded to certain charges, was rearraigned upon a new set of charges
substituted for the others, which were withdrawn; where one of several distinct
charges upon which the accused had been arraigned was withdrawn pending the
trial, and the accused, after a trial and finding by the court upon the other charges,
was brought to trial anew upon the charge thus withdrawn; where, after pro-
ceedings commenced, but discontinued without a finding, the accused was brought
to trial anew upon the same charge; where, after having been acquitted or con-
victed upon a certain charge which did not in fact state the real offense committed,
the accused was brought to trial for the same act, but upon a charge setting forth
the true offense; where the accused was brought to trial after having had his case
fully investigated by a different court, which, however, failed to agree in a finding
and was consequently dissolved ;( 6 ) where the first court was dissolved because
reduced below five members by the casualties of the service pending the trial;
where, for any cause, there was a "mistrial," or the trial first entered upon was
terminated, or the court dissolved, at any stage of the proceedings before a final
acquittal or conviction. Ibid., par. 305.
Where an officer or soldier, having been acquitted or convicted of a criminal
offense by a civil court, is brought to trial by a court-martial for a military offense
involved in his criminal act, he can not plead "a former trial," in the sense of this
article. So, where the trial for the military offense has preceded, he can not plead
autrefois acquit or convict to an indictment for the civil crime committed in and by
the same act. (c) Ibid., par 306.
Where the accused has been once duly convicted or acquitted, he has been "tried"
in the sense of the article, and can not be tried again against his will, though no
action whatever be taken upon the proceedings by the reviewing authority, or though
the proceedings, findings (and sentence, if any), be wholly disapproved by him. (d)
It is immaterial whether the former conviction or acquittal is approved or disapproved.
Ibid., par. 307.
That an accused has been, in the opinion of the reviewing authority, inadequately
sentenced, either by a general or an inferior court, can not except hi.- case from the
application of this article; though insufficiently punished, he can not be tried again
for the same offense. Ibid., par. 308.
Where an officer, who had killed a superior officer in an altercation at a military
post, was brought to trial before a civil court on a charge of murder and acquitted, and
was subsequently arraigned before a court-martial for the offense against military
discipline involved in his criminal act, held that a plea of former trial interposed by
him was properly overruled by the court. Ibid., par. 309.
A soldier was convicted of "manslaughter," but the findings and sentence were
disapproved. He was then brought to trial on a charge of mutiny, as committed on
the occasion of the homicide, the latter being alluded to in the specification as an
incidental circumstance of aggravation, and was found guilty and sentenced. Held
that the accused was not, in the sense of this article, ' ' tried u second time for the
a I Opin. Att. Gen., 233. And see also VI, ibid., 205.
b See U. S. v. Perez, 9 Wheat,, 579.
c See VI Opin. Att. Gen., 413, 506.
d Compare Macomb, section 169; O'Brien, 277; Rules for Bombay Army, 45.
MILITARY LAWS OF THE UNITED STATES. 1021
reason of having absented himself, or of some other mani-
fest impediment, he shall not have been amenable to justice
within that period.1
No person shall be tried or punished by a court-martial a^jjjlljjf1 etc * "
for desertion in time of peace and not in the face of an
same offense," the mutiny not consisting in the act of homicide, but constituting a
distinct offense. Ibid., par. 310.
There can not, in view of this article, be a second trial where the offense is really
the same, though it may be charged under a different description and under a differ-
ent article of war. Thus, where the Government elects to try a soldier under the
thirty -second article for "absence without leave," or under the forty^second for
''lying out of quarters," and the testimony introduced develops the fact that the
offense was desertion, the accused, after an acquittal or conviction, can not legally
be brought a second time to trial for the same absence charged as a desertion. Ibid.,
par., 311.
1 The prohibition of the article relates only to prosecutions before general courts-
martial; it does not apply to trials before inferior courts. So courts of inquiry may
be convened without regard to the period which has elapsed since the dates of the
act or acts to be investigated. Nor does the limitation apply to the hearing of com-
plaints by regimental courts under article 30. Dig. Opin. J. A. G., par. 318; VI
Opin. Att. Gen., 239.
In view of this article, it is the duty of the Government to prosecute an offender
within a reasonable time after the commission of the offense. Dig. Opin. J. A. G.,
par. 319.
It has been held, under the original article, that an officer or soldier could not be
legally arrested, with a view to trial, where more than two years (in which he was
amenable to justice) had elapsed since his offense. Ibid., 123, par. 7.
The limitation is properly matter of defense to be specially pleaded and proved, (a)
By pleading guilty the accused is assumed to waive the rignt to plead the limitation
by a special plea in bar. But, under a plea of not guilty, the limitation may be taken
advantage of by evidence showing that it has taken effect. Ibid., par. 320.
By the absence referred to in the original article, in the term "unless by reason of
having absented himself," is believed to be intended, not necessarily an absence from
the United States, but an absence by reason of a "fleeing from justice," analogous to
that specified in section 1045, Revised Statutes, which has been held to mean leaving
one's home, residence, or known abode within the district, or concealing one's self
therein, with intent to avoid detection or punishment for the offense against the
United States. (6) Thus held that, in a case other than desertion, it was not essential
or the prosecution to be prepared to prove that the accused had been beyond the
territorial jurisdiction of the United States in order to save the case from the opera-
tion of the limitation. Ibid., par. 321.
A court-nlartial, in a case of an offense other than desertion, sustained a plea of the
statute of limitations in bar of trial for the reason that the judge-advocate could pro-
duce no evidence to show that the accused was not within the territorial jurisdiction
of the United States during his absence. Held that such showing was not necessary,
and that it was sufficient that the absence should be any unauthorized absence froin
the military service whereby the absentee evades and for the time escapes trial.
This construction of the term "absented himself" in the article corresponds to that
placed on the words "fleeing from justice," as used in the statutes of the United
States to designate those whom the statutes of limitation for the prosecution of
crimes do not protect. Ibid., par. 322.
In the case of an enlisted man charged with desertion, the act of desertion having
been committed more than ten years prior to the reference of the charges for trial,
the accused pleaded the statute of limitations in bar of trial. The court declined to
entertain the plea, and, regarding the statement of the accused as an instance of
answering "foreign to the purpose," proceeded with the trial as if a plea of not
guilty had been entered. As no action was taken by the court upon the plea of the
accused, and no testimony taken at the trial with a view to establish his identity,
the proceedings, finding, and sentence were disapproved bv the Secretarv of War.
G. C. M. 0. No. 44, A. G. O., 1884.
a In re Bogart. 2 Sawyer, 397; In re Waite, 17 Fed. Rep., 723; In re Davison, 21 ibid., 618; In re Zim-
merman, 30, ibid., 176; Peoples Price (Michigan). 41 N W. Rep., 853; State v. Strong, 39 La. Ann., 1081;
G. O. 22, A. G. O., 1893. See, also, U. S. v. Cooke, 17 Wallace, 168.
6 U. S. v. O'Brien, 2 Dillon, 381; U. S. v. White, 5 Cranch C. C., 38, 73- I Gould and Tucker, Notes
on Revised Statutes, 349.
1022 MILITAEY LAWS OF THE U1STITED STATES.
enemy, committed more than two years before the arraign-
Apreiiioi89o v ment of such person for such offense, unless he shall inean-
26, p. 54. while have absented himself from the United States, in
which case the time of his absence shall be excluded in
limitation." g of computing the period of the limitation: Provided, That
said limitation shall not begin until the end of the term for
which said person was mustered into the service. Act of
April 11, 1890(26 Stat. L., 54).
sentPeSce° v * * °f ART. 104. No sentence of a court-martial shall be carried
27p
*
78.7' 189a* v' into execution until the same shall have been approved by
Art- War- the officer ordering the court, or by the officer commanding
for the time being. 1 Act of July #7, 1892 (27 Stat. L. , 278).
ofCTea?hatsen- ART. 105. No sentence of a court-martial inflicting the
teju?y IT 1862 c punishment of death shall be carried into execution until
IS; Mar Vise?' ^ shall have been confirmed by the President, except in
735? 'July' 2,' lie?,' ^ne cases °^ persons convicted in time of war as spies,
<yi5,s.i,v.i3,p. mutineers, deserters, or . murderers, and in the cases of
IDS Art. war. guerrilla marauders convicted in time of war of robbery,
burglary, arson, rape, assault with intent to commit rape,
or of violation of the laws and customs of war; and in
such excepted cases the sentence of death may be carried
into execution upon confirmation by the commanding gen-
eral in the field or the commander of the department, as
the case may be. l
confirmation ART. 106. In time of peace no sentence of a court-martial
of dismissals in r
tiTo60irteJwar Directing the dismissal of an officer shall be carried into
execution until it shall have been confirmed by the Presi-
dent.1
di?£SnSSol bn- ART. 107. No sentence of a court-martial appointed by
gaoecC24ri86i <• tne Commander of a division or of a separate brigade of
3> io72Art?3war troops directing the dismissal of an officer shall be carried
into execution until it shall have been confirmed by the
general commanding the army in the field to which the
division or brigade belongs.2
^ee the title "The Reviewing Authority" in the chapter entitled MILITARY
TRIBUNALS.
2For instances in which the proceedings in important cases were disapproved by
the President on account of their not having been reviewed by the officer ordering
the court, see G. O. 55, A. G. 0., 1863; ibid., 101, 1863; ibid., 168, 1863, and 180, 1863'.
In view of the provisions of the one hundred and sixth and this article, held that
when in time of war a department commander is the reviewing authority, no confirma-
tion of a sentence of dismissal by higher authority is necessary, but when a division
or separate brigade commander is the reviewing authority, such sentence must be
confirmed by the general commanding the army in the field to which the division
or brigade belongs. And in the latter case, if the division or brigade does not belong
to a separate army in the field, the commanding general of the Army of the United
States would be the proper confirming authority, within the meaning of this article.
Dig. Opin. J. A. G., par. 338.
MILITAKY LAWS OF THE UNITED STATES. 1023
ART. 108. No sentence of a court-martial, either in
of peace-or in time of war, respecting a general officer shall rei5|CArntf War.
be carried into execution until it shall have been confirmed
by the President.1
ART. 109. All sentences of a court-martial may be con- ^8?™ Sd™
firmed and carried into execution by the officer ordering inf0g°S; war.
the court, or by the officer commanding for the time being,
where confirmation by the President or by the command-
ing general in the field or commander of the department
is not required by these articles.2
•*#*•*•*•**
ART. 111. Any officer who has authority to carry into ses^Penncsie°sn $
execution the sentence of death or of dismissal of an officer Jj^jf or dls"
may suspend the same until the pleasure of the President m ^rt- War-
shall be known, and in such case he shall immediately
transmit to the President a copy of the order of suspen-
sion, together with a copy of the proceedings of the court.3
ART. 112. Every officer who is authorized to order amftf^^n **$
general court-martial shall have power to pardon or miti- seJ^yC17^1862) c.
gate any punishment adjudged by it, except the punish- |°J» s- 7- v- 12- P-
ment of death or of dismissal of an officer. Every officer n- Art- War-
commanding a regiment or garrison in which a regimental
jSee the title "The Reviewing Authority" in the chapter entitled MILITARY
TRIBUNALS.
2 The One hundred and tenth Article of War, originally enacted as section 7 of the
act of July 27, 1862 (12 Stat. L., 598), and as amended by the act of July 27, 1892 (27
Stat. L., 278), was repealed by the act of June 18, 1898, which substituted the new
summary court for the old summary court, having jurisdiction for the trial of
enlisted men for minor offenses committed in time of peace, and for the field officers'
court, having similar jurisdiction in time of war.
Where the reviewing officer deems that the proceedings of the court are in any
material particular erroneous or ill advised, his proper course in general will be to
reconvene the court for the purpose of having the defect corrected, at the same time
furnishing it with the grounds of his opinion. Thus, if he regards the sentence
inadequate, he should, in reassembling the court for a revision of the same, state the
reasons why he considers it to be disproportionate to the amount of criminality
involved in* the offense. But although he can not compel the court to adopt his
views in regard to the supposed defect, he may, in a proper case, express his formal
disapprobation of their neglect to do so. Thus where a court-martial, on being recon-
vened, with a view of giving it an opportunity to modify a sentence manifestly too
lenient for the offense found, decided to adhere to the sentence as adjudged, and,
on being again reassembled to consider further grounds presented by the reviewing
commander for the infliction of a severer penalty, again declined "to increase the
punishment, held that it was within the authority of the reviewing officer, and would
be no more than proper and dignified for him, in taking final action upon the case,
to reflect upon the refusal of the court as ill judged and as having the effect to impair
the discipline and prejudice the interest of the military service. Ibid., par. 2231.
3 An officer suspending the execution of a sentence for the action of the President
under this article should first formally approve the same. Simply to forward the
proceedings, stating that the sentence has been suspended, is incomplete and irregute r.
If the commander dix<tj>i>i'orei! the sentence, he should not, of course, suspend and
trasmit under this article, since there remains nothing for the President to act upon.
Ibid., par. 389.
Where a case is submitted to the President for his action under this article, he
may approve or disapprove the sentence in whole or in part, and, if approving, may
exercise the power of remission or mitigation. Ibid., par. 340.
MILITARY LAWS OF THE UNITED STATES.
or garrison court-martial may be held, shall have power
to pardon or mitigate any punishment which such court
may adjudge.1
foward3idin to ART- 113- Every judge-advocate, or person acting as
General >dvocate " such, at any general court-martial, shall, with as much
2oiluss sV^iS' expedition as the opportunity of time and distance of
us Art. w»r. pjace may admit, forward the original proceedings and
sentence of such court to the Judge-Advocate-General of
the Army, in whose office they shall be carefully preserved.2
to^acopyentitled ART. 114. Every party tried by a general court-martial
114 In. war. ghgj^ upon demand thereof, made by himself or by any
person in his behalf, be entitled to a cop}^ of the proceed-
ings and sentence of such court.2
qu^ry,rthow or- ART. 115. A court of inquiry, to examine into the nature
115' Art. war. of any transaction of, or accusation or imputation against,
any officer or soldier, may be ordered by the President or
by any commanding officer; but, as courts of inquiry may
be perverted to dishonorable purposes, and may be em-
ployed, in the hands of weak and envious commandants,
as engines for the destruction of military merit, they shall
never be ordered by any commanding officer, except upon
a demand by the officer or soldier whose conduct is to be
inquired of.3
Members of ART. 116. A court of inquiry shall consist of one or
court of inquiry. J
116 Art. war. mOre officers, riot exceeding three, and a recorder, to
reduce the proceedings and evidence to writing.8
be^S5i0re?ord" ART. 117. The recorder of a court of inquiry shall
®ug!ycourt of in~ admin ister to the members the following oath: " You
117 Art. war. wen and truly examine and inquire, according to the
evidence, into the matter now before you, without partiality ',
favor, affection, prejudice, or hope of reward: So help you
God. " After which the president of the court shall admin-
ister to the recorder the following oath: " You, A B, do
swear that you will, according to your best abilities, accu*
rately and impartially record the proceedings of the court
and the evidence to be given in the case in hearing: So help
you God.™
ta*SSSfanSi ART- 118t A court of inquiry, and the recorder thereof,
<iuiry- shall have the same power to summon and examine wit-
nesses as is given to courts-martial and the judge-advocates
!See the title, " The Reviewing Authority," in the chapter entitled MILITARY TRIBU-
NALS. Sec. 5 of the act of July 27, 1892 (27 Stat. L., 281), provides "that com-
manding officers authorized to approve the sentences of summary courts shall have
the power to remit or mitigate the same." See also note to par. 2, "The pardoning
power."
3 See the title, " The Record," in the chapter entitled MILITARY TRIBUNALS.
3 See the title, " Courts of Inquiry," in the chapter entitled MILITARY TRIBUNALS.
MILITAKY LAWS OF THE UNITED STATES. 1025
thereof. Such witnesses shall take the same oath which 75Msa273'v18§p;
is taken by witnesses before courts-martial,1 and the ^9^a^^'v18g;
party accused shall be permitted to examine and cross- P'/fgirt .war.
examine them, so as fully to investigate the circumstances
in question.2
ART. 119. A court of inquiry shall not give an opinion g£$™i™'' when
on the merits of the case inquired of unless specially 119Art- War-
ordered to do so.2
ART. 120. The proceedings of a court of inquiry must be tionUo?proceed-
authenticated by the signatures of the recorder and the {^.of court of
president thereof, and delivered to the commanding 120Art-War-
officer.2
ART. 121. The proceedings of a court of inquiry may be co^Hfe1Jfqgusir°yf
admitted as evidence by a court-martial, in cases not capi-
tal nor extending to the dismissal of an officer: Provided,
That the circumstances are such that oral testimony can
not be obtained.2
ART. 122. If, upon marches, guards, or in quarters, dif-
ferent corps of the Army happen to join or do duty together, 9JJP8 happen to
the officer highest in rank of the line of the Army, Marine 122 Art- War*
Corps, or militia, by commission, there on duty or in quar-
ters, shall command the whole, and give orders for what is
needful to the service, unless otherwise specially directed
by the President, according to the nature of the case.3
. ART. 123. In all matters relating to the rank, duties, v5urSeer oS?-
and rights of officers, the same rules and regulations shall ^lingQ assanJo
apply to officers of the Regular Army and to volunteers raMa're2C'i867 c
commissioned in, or mustered into said service, under the^'8-2' v-14» P-
laws of the United States, for a limited period.3 123 Art. war.
ART. 124. Officers of the militia of the several States,
when called into the service of the United States, shall on
all detachments, courts-martial, and other duty wherein unjjfaerr ^mi
they m&y be employed in conjunction with the Regular or ^ s- 2> v- 14> P-
Volunteer forces of the United States, take rank next after 124 Art- War-
all officers of the like grade in said Regular or Volunteer
forces, notwithstanding the commissions of such rnilitia
officers may be older than the commissions of the said offi-
cers of the Regular or Volunteer forces of the United
States.3
ART. 125< In case of the death of any officer, the niajorce^cee^|^g °m"
of his regiment, or the officer doing the major's duty, or 125 Art. war.
the second officer in command at any post or garrison, as
1 So in the roll.
2 See the title " Courts of Inquiry," in the chapter entitled MILITARY TRIBUNALS.
3 See chapter entitled RANK AND COMMAND, ETC.
22924—08 65
1026 MILITARY LAWS OF THE UNITED STATES.
the case may be, shall immediately secure all his effects
then in camp or quarters, and shall make and transmit
to the office of the Department of War, un inventory
thereof. l
dieres?ee^ts.so1" ART- 126. In case of the death of any soldier, the com-
ae Art. war. man(jjng. officer of his troop, battery, or company shall
immediately secure all his effects then in camp or quar-
ters, and shall, in the presence of two other officers,
make an inventory thereof, which he shall transmit to the
office of the Department of War.
ce?sffedctoffifcedres ART- 12^- Officers charged with the care of the effects
be accounted fo? °^ deceased officers or soldiers shall account for and deliver
127 Art. war. faQ same, or the proceeds thereof, to the legal representa-
tives of such deceased officers or soldiers. And no officer
so charged shall be permitted to quit the regiment or post
until he has deposited in the hands of the commanding
officer all the effects of such deceased officers or soldiers
not so accounted for and delivered.2
toAbeTub°iishedr ART* 128' The foregoing articles shall be read and pub-
months to every ^sne^ once m every six months, to every garrison, regi-
ref2meArt.ewar. ment? troop, or company in the service of the United States,
and shall be duly observed and obeyed by all officers and
soldiers in said service.
ip^io isoe c ^EC* 1343. All persons who, in time of war, or of rebel-
37i-SFeb Is 18^2' ^on agamst the supreme authority of the United States,
a402-5Mar 1$ ^sea' sna^ ^e f ound lurking or acting as spies, in or about any
P.'?!? s' ^' v< 12' °* ^e fortifications, posts, quarters, or encampments of
any of the armies of the United States, or elsewhere, shall
be triable by a general court-martial, or by a military com-
mission, and shall, on conviction thereof, suffer death.
1 See the title "Deceased Officers,'1 in the Chapter entitled COMMISSIONED OFFICERS.
2 This article, in connection with the two preceding articles, provides for the securing
of the effects of deceased officers and soldiers, making inventory of the same, and
accounting for them to the proper legal representative, etc. These articles have
special reference to cases of deaths of military persons while in active service in the
field or at remote military posts, and their provisions apply only to such effects as
are left by the deceased "in camp or quarters." See articles 125 and 126. An
attempt by the commander, etc. , to secure effects left elsewhere would not be within
the authority here given and might subject the officer to the liability of an admin-
istrator; such a proceeding would not therefore be advisable, (a) Upon accounting
to the duly qualified legal representative, as directed in the article, the responsibility
remains at the request of his relatives, were sent to them on a Mississippi steamboat.
Wages being due to the employee at the time of his death, the disbursing officer
paict out of these the charges of the transportation and turned over the balance to
the man's heirs. Held, in view of the tenor and effect of this article, that the dis-
position of the funds in this case was erroneous, and that the full wages due (with-
out deduction) should have been accounted for to the "legal representatives" of the
deceased. Ibid., 140, par. 2.
a Compare Samuel, 669; Hough (Practice), 558.
APPENDICES.
i 1. THE GENEVA CONVENTION OF 1864.
II. ADDITIONAL ARTICLES OF OCTOBER 20, 1868.
III. ADDITIONAL AGREEMENT OF JULY 29, 1899, FOR THE ADAPTATION
OF THE RULES OF THE GENEVA CONVENTION TO MARITIME
WARFARE.
IV. THE AMERICAN NATIONAL RED CROSS.
V. THE ARMY REORGANIZATION ACT OF FEBRUARV 2, 1901.
VI. MAXIMUM PUNISHMENT ORDER.
VII. INSTRUCTIONS FOR THE GOVERNMENT OF THE ARMIES OF THE
UNITED STATES IN THE FIELD (GENERAL ORDERS No. 100,
WAR DEPARTMENT, OF 1863).
VIII. CIVIL SERVICE RULES.
1027
TREATIES, CONVENTIONS, AND AGREEMENTS.
AMELIORATION OF THE CONDITION OF THE WOUNDED
IN TIME OF WAR.
Convention between the United States, Baden, Switzerland, Aus-'22' 1864-
Belgium, Denmark, Spain, France, Hesse, Italy, Neth-
erlands, Portugal, Prussia, Wurtemberg, Sweden, Greece,
Great Britain, Mecklenburg -Schwerin, Turkey, Bavaria,
Austria, Russia, Persia, Roumania, Salvador, Montene-
gro, Servia, Bolivia, Chili, Argentine Republic, Japan
and Peru; with additional articles: For the amelioration
of the wounded in armies in the field; concluded August
22, 1864,; acceded to ly the President March 1, 1882; ac-
cession concurred in by the Senate March 16, 1882; pro-
claimed as to the original convention, hut with reserve as
to the additional articles, July 26, 1882. 1
President's ratification of the act of accession, as transmitted to Berne and
exchanged for the ratifications of the other signatory and adhesory powers, embraces
the French text of the convention of August 22, 1864, and the additional articles of
October 20, 1868. The French text is therefore, for all international purposes, the
standard one.
The several contracting parties to the said convention exchanged the ratifications
thereof at Geneva, on the 22d day of June, 1865.
The several states hereinafter named have signified their adherence to the above
convention, in virtue of Article IX, on the dates as noted in the following list:
Sweden December 13, 1864.
Greece January 5-17, 1865.
Great Britain February 18, 1865.
Mecklenburg-Schwerin March 9, 1865.
Turkey July 5, 1865.
Wurtemberg June 2, 1866.
Hesse June 22, 1866.
Bavaria June 30, 1866.
Austria July 21, 1866.
Russia May 10-22, 1867.
Persia t December 5, 1874.
Roumania November 18-30, 1874.
Salvador December 30, 1874.
Montenegro November 17-29, 1875.
Servia March 24, 1876.
Bolivia October 16, 1879.
Chili November 15, 1879.
Argentine Republic November 25, 1879.
Peru April 22, 1880.
1029
1080
MILITARY LAWS OF THE UNITED STATES.
ARTICLE I. Ambulances
prot°erc1ednandand military hospitals shall
etc.1 d inviolate- be acknowledged to be neu-
ter, and, as such, shall be
protected and respected b}^
belligerents so long as any
sick or wounded may be
therein.
Exception. Such neutrality shall cease
if the ambulances or hospi-
tals should be held by a mil-
itary force.
etc%Pspected as ART' IL Persons employed
neutrals. jn hospitals and ambulances,
comprising the staff for su-
perintendence, medical serv-
ice,administration, transport
of wounded, as well as chap-
lains, shall participate in the
benefit of neutrality, whilst
so employed, and so long as
there remain any wounded to
bring in or to succor.
II. The persons des-
article may, even after occu-
pation by the enemy, con-
tinue to fulfill their duties in
the hospital or ambulance
which the}r serve, or may
withdraw in order to rejoin
the corps to which they
belong.
Under such circumstances,
when these persons shall
cease from their functions,
they shall be delivered by the
occupying army to the out-
posts of the enemy.
ART. IV. As the equip-
pr^pertyoniy.tement of military hospitals
remains subject to the laws
of war, persons attached to
such hospitals can not, in
withdrawing. cany away any
ARTICLE I. Les ambu-
lances et les hopitaux niili-
taires seront reconnus neu-
tres, et, comme tels, proteges
et respectes par les bellige-
rants aussi longtemps qu'il
s'y trouvera des malades ou
des blesses.
La neutralite cesserait, si
ces ambulances ou ces hopi-
taux etaient gardes par une
force militaire.
ART. II. Le personnel des
hopitaux et des ambulances,
comprenant 1'intendance, les
services de sante, d'adminis-
tration, de transport des
blesses, ainsi que les aumo-
niers, participera au benefice
de la neutralite lorsqu'il
fonctionnera, et tant qu'il
restera des blesses a relever
ou a secourir.
ART. III. Les personnes
designees dans 1'article pre-
ce*dentpourront, memeapres
Poccupation par Fennemi,
continuer a remplir leurs
fonctions dans 1'hopital ou
Tambulance qu'elles desser-
vent, ou se retiror pour re-
joindre le corps auquel elles
appartien nent .
Dans ces circonstances,
lorsque ces personnes cesse-
ront leurs fonctions, elles
seront remises aux avant-
postes ennemis, par les soins
de 1'armee occupante.
ART. IV. Le materiel des
hopitaux militaires demeu-
rant soumis aux lois de la
guerre, les personnes at-
taches a ces hopitaux en
pourront, en se retirant, em-
MILITARY LAWS OF THE UNITED STATES.
1031
articles but such as are their
private property.
Under the same circum-
stances an ambulance shall,
on the contrary, retain its
equipment.
ART. V. Inhabitants of the
country who may bring help
to the wounded shall be re-
spected, and shall remain
free. The generals of the
belligerent Powers shall
make it their care to inform
the inhabitants of the appeal
addressed to their humanity,
and of the neutrality which
will be the consequence of it.
Any wounded man enter-
tained and taken care of in
a house shall be considered
as a protection thereto. Any
inhabitant who shall have
entertained wounded men in
his house shall be exempted
from the quartering of
troops, as well as from a part
of the contributions of war
which may be imposed.
ART. VI. Wounded or sick
soldiers shall be entertained
and taken care of, to what-
ever nation they may belong.
Commanders-in-chief shall
have the power to deliver
immediately to the outposts
of the enemy soldiers who
have been wounded in an
engagement, when circum-
stances permit this to be
done, and with the consent
of both parties.
Those who are recognized,
after their wounds are
porter que les objets qui sont
eur propriete particuliere.
Dans les rnemes circon-
stances, aucontraire, 1'ambu-
lance conservera son mate*-
riel.
ART. V. Les habitants du Persons serv-
ing the wounded
pays qui porteront SeCOUrS to remain free.
aux blesses seront respecte*s,
et demeureront libres. Les
ge*neraux des Puissances
belligerantes auront pour
mission de prevenir les habi-
tants de Pappel fait a leur
humanite, et de la neutralite
qui en sera la consequence.
Tout blesse recueilli et
soigne dans une rnaison J Defected to
s e r v i r a de sauvegarde.
L'habitant qui aura recueilli
chez lui des blesses sera dis-
pense du logement des
troupes, ainsi que d'une
partie des contribution? de
guer ue qui seraient impose*es.
ART. VI. Les militaires soldiers sick or
wounded of any
blesses ou malades seront nation t(>be re-
heved and cared
recueilhs et soignes, a quel- for
que nation qu'ils appartien-
dront.
Les Commandants-en-chef Del*vei of
auront la faculte de remettre
immediatement aux avant-
postes ennemis, les militaires
blesses pendant le combat,
lorsque les circonstances le
permettront et du consente-
ment des deux partis.
,
wounded, etc.
Seront renvoyes dans leurs pf °}$* fedinf°0a;
pays ceux qui, apres gu6ri-ff0^etobe8ent
1032
MILITARY LAWS OF THE UNITED STATES.
healed, as incapable of serv- son, seront reconnus inca-
ing, shall be sent back to pables de servir.
their country.
returnndltkms °f Theothersmay also be sent
back, on condition of not
again bearing arms during
the continuance of the war.
Rv"""»1 i on >i
etc.. 10. aveabMi
lute neutrality.
Hospital, am-
bulance, and
evacuation flag,
etc. -
Arm- badge.
Flag and arm-
badge to bear red
cross, etc.
Execution of
details of con-
vention.
Evacuations, together with
the persons under whose di-
rections they take place, shall
be protected by an absolute
neutrality.
ART. VII. A distinctive
and uniform flag shall be
adopted for hospitals, ambu-
lances and evacuations. It
must, on every occasion, be
accompanied by the national
flag. An arm-badge (bras-
sard) shall also be allowed
for individuals neutralized,
but the delivery thereof shall
be left to military author-
ity.
The flag and the arnubadge
shall bear a red cross on a
white ground.
ART. VIII. The details of
execution of the present con-
vention shall be regulated
by the commanders-in -chief
of belligerent armies, accord-
ing to the instructions of
their respective govern-
ments,and in conformity with
the general principles laid
down in this convention.1
Les autres pourront etre
egalement renvoyes, a la con-
dition de ne pas reprendre
les armes pendant la dureV
de la guerre.
Les evacuations, avec la
personnel qui les dirige,
seront co'uvertes par une
neutral ite absolue.
ART. VII. Un drapeau dis-
tinctif et uniforme sera
adopte pour les hopitaux, les
ambulances et les evacua-
tions. II devra etre, en toute
circonstance, accompagne du
drapeau national. Un bras-
sard sera egalement admis
pour le personnel neutralise,
mais la delivrance en sera
laissee a Pautorite militaire.
Le drapeau et le brassard
porteront croix rouge sur
fond blanc.
ART. VIII. Les details
d'execution de la presente
convention seront regies par
les Commandants en chef
des armees belligerantes, d'a-
pres les instructions de leurs
Gouvernements repectifs, et
conformement aux principes
generaux enonces dans cette
convention.
REGULATIONS.
1. All persons connected with the Medical Department of the Army in the field.
or referred to in Article II of the treaty, shall wear habitually during the war, on
the left sleeve of the coat, midway between the shoulder and elbow, a brassard or
arm badge, consisting of a red cross on a white ground.
2. All hospitals, ambulances, and field stations of the Medical Department will
habitually display the Red Cross flag accompanied by the national flag.
3. Permits, in duplicate, for civilians to be present with the Army in the service
of the Medical Department may be given by authority of a division commander; one
MILITARY LAWS OF THE UNITED STATES.
1033
ART. IX. The high con-
tracting Powers have agreed
to communicate the present
convention to those Govern-
ments which have not found
it convenient to send pleni-
potentiaries to the Interna-
tional Conference at Geneva,
with an invitation to accede
thereto; the protocol is for
that purpose left open.
ART. X. The present con-
vention shall be ratified, and
the ratifications shall be ex-
changed at Berne, -in four
months,or sooner, if possible.
In faith whereof the respec-
tive Plenipotentiaries have
signed it and have affixed
their seals thereto.
Done at Geneva, the
twenty-second day of the
month of August of the year
one thousand eight hundred
and sixty -four.
[L. s.] General G. H. Du-
FOUR.
[L. s.J G. MOYNIER.
[L. s.] Dr. LEHMANN.
[L. s.] Dr. ROBERT VOLZ.
[L. s.] STEINER.
Protocol to re-
main open, etc.
Ratification.
ART. IX. Les hautes Puis-
sances contractantes sont ^Jj
convenues de communiquer to convention
la presente convention aux
Gouvernements qui n'ont pu
envoyer des Plenipoten-
tiaires a la Conference inter-
nationale de Geneve, en les
invitant a y acceder; le
protocole est a cet eff'et laisse
ouvert.
ART. X. La presente con-
vention sera ratified, et
les ratifications en seront
echangees a Berne, dans
1'espace de quatre mois, ou
plus tot si faire se peut.
En foi de quoi les Plenipo- signatures.
tentiaires respectifs 1'ont
signee et y ont appose le
cachet de leurs armes.
Fait a Geneve, le vingt-
deuxieme jour du mois d'aout
de Pan mil huit-cent soixante-
quatre.
[L. s.] General G. H. Du-
FOUR.
[L. s.] G. MOYNIER.
[L. s.] Dr. LEHMANN.
[L. s.] Dr. ROBERT VOLZ.
[L. s.] STEINER.
cer°
copy of the permit will be retained by the person neutralized and its duplicate
should be forwarded promptly to the Chief Surgeon of the Army.
4. Persons neutralized under this authority will report themselves at once to the
chief surgeon of division for instructions.
5. The wearing of the arm brassard by any person not officially neutralized is pro-
hibited. G. 0. 47, A. G. O., 1898.
Hospital ships. — The following instructions were also promulgated in respect to the
hospital ship Relief:
"The steamship recently purchased for the use of the Medical Department of the
Army as a hospital ship will be named the Relief., In accordance with the terms of
the Geneva Convention the Geneva Cross flag will be carried at the fore whenever
the national flag is flown, and the neutrality of the vessel will at all times be pre-
served.
" No guns, ammunition, or articles contraband of war, except coal or stores neces-
sary for the movement of the vessel, shall be placed on board; nor shall the vessel
be used as a transport for the carrying of dispatches, officers or men not sick or dis-
abled, other than those belonging to the Medical Department." G. O.fiS, A. G. O.,
1898.
Similar instructions were also issued by the United States Navy Department.
1084
MILITARY LAWS OF THE UNITED STATES.
[L. s. ] VISSCHERS. [L. s.J
|L. s.] FENGER. [L. s.]
[L. s.] J. HERIBERTO GAR- L. s.J
CIA DE QUEVEDO.
[L. s.J OH. JAGERSCHMIDT. [L. s.]
[L. s.] S. DE PREVAL. [L. s.]
[-L, 8.] BOUDIER. [L. S.}
[L. S.] BRODRUCK. [L. S.J
[»L. s.] CAPELLO. [L. s.]
[L. s.] F. BAROFFIO. [L. s.]
[L. s.] WESTENBERG. [L. s.]
[L. s.J Josri ANTONIO MAR- [L. s.]
QUES.
[L. s.] DE KAMPTZ. [L. s.J
[L. S.J LCEFFLER. [L. S.]
[L. s.J BITTER. [L. s.J
[L. s.J Dr. HAHN. [L. s.]
VISSCHERS.
FENGER.
J. HERIBERTO GAR-
CIA DK QUEVEDO.
CH. JAGERSCHMIDT.
S. DE PREVAI,.
BOUDIER.
BRODRUCK.
CAPELLO.
F. BAROFFIO.
WESTENBERG.
Jos£ ANTONIO MAR-
QUES.
DE KAMPTZ.
LCEFFLER.
RITTER.
Dr. HAHN.
ADDITIONAL ARTICLES.
Proposed ex- The governments of North Ger-
tension of provi-
sions of conven- many, Austria, Baden, Bavaria.
thenseaam ™ Belgium, Denmark, France, Great
Britain, Italy, the Netherlands,
Sweden and Norway, Switzerland,
Turkey, and Wiirtemburg, desir-
ing to extend to armies on the sea
the advantages of the Convention
concluded at Geneva the 22d of
August, 1864, for the amelioration
of the condition of wounded sol-
diers in armies in the field, and to
further particularize some of the
stipulations of the said Conven-
tion, have named for their com-
missioners:
ARTICLE I. The persons desig-
nated in Article II. of the Conven-
bulances; their tkm shall, after the occupation hv
release and de- J
parture. the enemy, continue to fulfil their
duties, according to their wants,
to the sick and wounded in the
ambulance or the hospital which
they serve. When they request to
withdraw, the commander of the
occupying troops shall fix the time
of departure, which he shall only
Rights of em
Les Gouvernements de 1'Alle-
magne du Nord, de FAutriche,
Bade, la Baviere, la Belgique, le
Danemark, la France, la Grande
Bretagne, F Italic, les Pays-Bas,
Suede et Norv6ge, la Suisse, la
Turquie, le Wurtemberg, d^sirant
£tendre aux armies de mer les
avantages de la Convention con-
clue a Geneve, le 22 aout 1864, pour
F amelioration du sort des mili-
taires blesses dans les armees en
campagne, et preciser da vantage
quelques-unes des stipulations de
la dite Convention, ont nomme
pour leurs Commissaires:
ARTICLE I. Le personnel design^
dans F article deux de la Conven-
tion continuera, apres F occupation
par Fennemi, a donner dans la
mesure des besoins, ses soins aux
malades et aux blesses de Farnbu-
lance on de Fh6spital qu'il dessert.
Lorsqu'il demanderaa se retirer,
le commandant des troupes occu-
pantes fixera le moment de ce de-
part, qu'il ne pourra toutefois
1 On the 20th of October, 1868, the above additional articles were proposed and
signed at Geneva on behalf of Great Britain, Austria, Baden, Bavaria, Belgium, Den-
mark, France, Italy, Netherlands, North Germany, Sweden and Norway, Switzer-
land, Turkey, and Wurtemberg.
MILITARY LAWS OF THE UNITED STATES.
1035
be allowed to delay for a short
time in case of military necessity.
ART. II. Arrangements will have
to be made by the belligerent pow-
ers to ensure to the neutralized1
person, fallen into the hands of the
army of the enemy, the entire en-
joyment of his salary.
ART. III. Under the conditions
provided for in Articles I. and IV.
of the Convention, the name "am-
bulance ' ' ] applies to field hospitals
and other temporary establish-
ments, which follow the troops on
the field of battle to receive the
sick and wounded.
ART. IV. In conformity with the
spirit of Article V. of the Conven-
tion, and to the reservations con-
tained in the protocol of 1864, it is
explained that for the appointment
of the charges relative to the quar-
tering of troops, and of the con-
tributions of war, account only
shall be taken in an equitable
manner of the charitable zeal dis-
played by the inhabitants.
ART. V. In addition to Article
VI. of the Convention, it is stipu-
lated that, with the reservation of
officers whose detention might be
important to the fate of arms and
within the limits fixed by the sec-
ond paragraph of that article, the
wounded fallen into the hands of
the enemy shall be sent back to
their country, after they are cured,
or sooner if possible, on condition,
nevertheless, of not again bearing
arms during the continuance of
the war.
differer que pour une courte dureV
en cas de ne"cessite"s militaires.
ART. II. Des dispositions de-
vront etre prises par les Puissances in enemy's
belligerantes pour assurer au per-
sonnel neutralise, tombe" entre les
mains de 1'armee ennemie, la jouis-
sance integrate de son traitement.
ART. III. Dans les conditions Definition of
the term "am-
prevues par les articles un et qua- bulance."
tre de la Convention, la denomina-
tion d' ambulance s' applique aux
hopitaux de campagne et autres
e"tablissements temporaires q u i
suivent les troupes sur les champs
de bataille pour y recevoir des
malades et des blesses.
ART. IV. ConformSment a 1'es- q£^^*°0J
prit de 1' article cinq de la Conven- troops, and con-
tion et aux reserves mentionne"es tn >ns' etc'
au Protocole de 1864, il est expli-
que" que pour la repartition des
charges relatives au logement de
troupes et aux contributions de
guerre, il ne sera tenu compte que
dans la mesure de l'equit£ du zele
charitable deploye" par les habi-
tants.
ART. V. Par extension del'arti- founded. obe
cle six de la Convention, il est country on con-
stipule' que sous la reserve des offi- again "bearing
ciers dont la possession importerait arms in the war.
au sort des armes, et dans les li-
mites fix£es par le deuxieme para-
graphe de cet article, les blesses
tombe"s entre les mains de 1' ennemi,
lors meme qu'ils ne seraient pas
reconnus incapables de servir, de-
vront etre renvoyes dans leur j^ays
apres leur guerison, ou plus tot si
faire se peut, il la condition toute-
fois de ne pas reprendre les armes
pendant la dur6e de la guerre.
[Articles concerning Hit Marine.] Articles concernant la Marine.
ART. VI. Les embarcations qui, Boats picking
N , . , M _ up the ship-
si leurs nsques et perils, pendant wrecked or
ART. VI. The boats which, at
their own risk and peril, during
and after an engagement pick up et apres le combat, recueillent ou wounded' etc-
the shipwrecked or wounded, or qui, ayant recueilli des naufrages
which having picked them up, ou des blesses, les portent & bord
1This interpretation is of especial importance in the United States, where the term
"ambulance" is generally applied to a vehicle for the transportation of the sick and
wounded.
1036
MILITARY LAWS OF THE UNITED STATES.
staff of
convey them on board a neutral or
hospital ship, shall enjoy, until the
accomplishment of their mission,
the character of neutrality, so far
as the circumstances of the engage-
ment and the position of the ships
engaged will permit.
The appreciation of these circum-
stances is entrusted to the human-
ity of all the combatants. The
wrecked and wounded thus picked
and saved must not serve again
during the continuance of the war.
ART- VIL The reliSioUS> med-
a cap- ical, and hospital staff of any cap-
tured vessel de- , •, , j i j •,
clared neutral, tured vessel are declared neutral,
and, on leaving the ship, may re-
move the articles and surgical
instruments which are their pri-
vate property.
ART. VIII. The staff designated
in the preceding article must con-
tinue to fulfil their functions in the
captured ship, assisting in the re-
moval of the wounded made by the
victorious party; they will then be
at liberty to return to their coun-
try, in conformity with the second
paragraph of the first additional
article.
The stipulations of the second
additional article are applicable
to the pay and allowance of the
staff.
Captured hos- ART. IX. The militarv hospital
pital ships to re- .
main under mar- ships remain under martial law in
a11 that concerns their stores; they
become the property of the captor,
but the -latter must not divert
them from their special appropri-
ation during the continuance of
the war.1
Duties of staff
officers, etc.
Pay and allow
ance of staff.
other purposes.
d'un navire soit neutre, soit hos-
pitalier, jouiront jusqu'ji 1'accom-
plissement de leur mission de la
part de neutrality que les circon-
stances du combat et la situation
des navires en conflit permettront
de leur appliquer.
L'appeciation de ces circon-
stances estconfiee a 1'humanite de
tous les combattants. Les nauf ra-
g£s et les blesses ainsi recueillis et
sauves no pourront servir pendant
la duree de la guerre.
ART. VII. Le personnel religi-
eux, medical et hospitalier de tout
batiment capture^ est declare neu-
tre. II emporte, en quittant le
navire, les objets et les instruments
de chirurgie qui sont sa propriety
particuliere.
* ART. VIII. Le personnel d^signe
dans 1'article precedent doit con-
tinuer a remplir ses fonctions sur
la batiment capture, concourir
aux Evacuations de blesses faites
par le vainqueur, puis il doit etre
libre de rejoindre son pays, con-
formement au second paragraphe
du premier article additionnel ci-
dessus.
Les stipulations du deuxieme
article additionnel ci-dessus sont
applicables au traitement de ce
personnel.
ART. IX. Les batiments hopi-
taux militaires restent soumis aux
lois de la guerre, en ce qui concerne
leur materiel; ils deviennent la
propriete du capteur, mais celuici
ne pourra les d^tourner de leur
affection spe"ciale pendant la duree
de la guerre.
1 In the published English text, from which this version of the Additional Articles
is taken, the following paragraph (marked in brackets) appears in continuation of
Article IX. It is not, however, found in the original French text adopted by the
Geneva conference October 20, 1868:
[The vessels not equipped for fighting, which, during peace, the Government shall
have officially declared to be intended to serve as floating hospital ships, shall, how-
ever, enjoy during the war complete neutrality, both as regards stores, and also as
regards their staff, provided their equipment is exclusively appropriated to the special
service on which they are employed.]
By an instruction sent to the United States minister at Berne, January 20, 1883, the
right is reserved to omit this paragraph from the English text, and to make any
other necessary corrections, if at any time hereafter the Additional Articles shall be
completed by the exchange of the ratifications hereof between the several signatory
and adhering powers.
MILITARY LAWS OF THE UNITED STATES.
1037
ART. X. Any merchantman, to
whatever nation she may belong,
charged exclusively with removal
of sick and wounded, is protected
by neutrality, but the mere fact,
noted on the ship's books, of the
vessel having been visited by an
enemy's cruiser, renders the sick
and wounded incapable of serv-
ing during the continuance of the
war. The cruiser shall even have
the right of putting on board an
officer in order to accompany the
convoy, and thus verify the good
faith of the operation.
If the merchant ship also car-
ries a cargo, her neutrality will
still protect it, provided that such
cargo is not of a nature to be con-
fiscated by the belligerents.
•
The belligerents retain the right
to interdict neutralized vessels
from all communication, and from
any course which they may deem
prejudicial to the secrecy of their
operations. In urgent cases spe-
cial conventions may be entered
into between commanders-in-
chief, in order to neutralize tem-
porarily and in a special manner
the vessel intended 1 or the removal
of the sick and wounded.
ART. XI. Wounded or sick sail-
ors and soldiers, when embarked,
to whatever nation they may be-
long, shall be protected and taken
care of by their captors.
Their return to their own coun-
try is subject to the provisions of
Article VI. of the Convention, and
of the additional Article V.
ART. XII. The distinctive flag
to be used with the national flag,
in order to indicate any vessel or
boat which may claim the benefits
of neutrality, in virtue of the
principles of this Convention, is a
white flag with a red cross. The
belligerents may exercise in this
respect any mode of verification
which they may deem necessary.
ART. X. Tout batiment de coin- segm
merce a quelque nation qu'il ap- hospital duty to
partienne, charge" exclusivement
de blessed et de malades dont il enemy's cruiser
rendering sick
opere 1 evacuation, est convert par and wounded in-
la neutralite; mais le fait seul
la visite, noting sur le journal du ice-
bord, par un crosieur ennemi, rend
les blesses et les malades incapa-
ble de servir pendant la duree de
la guerre. Le croiseur aura me'me
le droit de mettre 4 bord un com-
missaire pour accompagner le con-
voi et verifier ainsi la bonne foi de
1' operation.
Si le batiment de commerce Cargo of mer-
contenait en outre un chargement, feezed; Sh\v he n*-
la neutralite le couvrirait encore Provis°-
pourvu que ce chargement ne fut
pas de nature a e"tre confisque par
le bellige"rant.
Les bellig^rants conservent le .Right of bel-
droit d'interdire aux batiments hger€
neutralises toute communication
et toute direction qu'ils jugeraient
nuisibles au secret de leurs opera-
tions. Dans les cas urgents, des
conventions particuliSres pourront
etre faites entre les commandants-
en-chef pour neutraliser momenta-
n&nentd'une maniere speciale les
na vires destined a 1' Evacuation des
blesses et des malades.
ART. XI. Les marins et les mili- Wounded or
sick sailors and
taires embarques, blesses on ma- soldiers, when
lades, a quelque nation qu'ils ap- eD
partiennent, seront protege's et
soignes par les capteurs.
Leur repatriement est soumis Return to na-
fUj j i, ^L- i • tlve country.
aux prescriptions de 1 article six
de la Convention et de 1' article
cinq additionnel.
ART. XII. Ledrapeaudistinctifwlwhhi;te Jiag
a joindre au pavilion national pour etc., used by yes-1
indiquer un navire ou une embar- neutrality.121 *
cation quelconque qui reclame le
benefice de la neutralite, en vertu
des principes de cette Convention,
est le pavilion blanc a croix rouge.
Les belligerants exercent & cet
egard toute verification qu'ils ju-
gent necessaire.
1038
MILITARY LAWS OF THE UNITED STATES,
Military hos-
pitals painted . . ,
white, etc. distinguished
Military hospital ships shall be
by being painted
white outside, with green strake.
Hospital ships,
etc., and staff to
be treated as
neutral.
Flag sign, etc
of neutrality.
Aid and assist-
ance to wounded
and wrecked bel-
ligerents, with-
out distinction of
nationality.
• Rights of bel-
ligerents to con-
trol and visit ves-
sels, etc.
Wounded and
wrecked picked
up, etc., cai: not
be reclaimed.
ART. XIII. The hospital ships
which are equipped at the ex-
pense of the aid societies, recog-
nized by the governments signing
this Convention, and which are
furnished with a commission ema-
nating from the sovereign, who
shall have given express authority
for their being fitted out, and
with a certificate from the proper
naval authority that they have
been placed under his control dur-
ing their fitting out and on their
final departure, and that they
were then appropriated solely to
the purpose of their mission, shall
be considered neutral, as well as
the whole of their staff. They
shall be recognized and protected
by the belligerents.
They shall make themselves
known by hoisting, together with
their national flag, the white flag
with a red cross. The distinctive
mark of their staff, while perform-
ing their duties, shall be an armlet
of the same colors. The outer
painting of these hospital ships
shall be white, with red strake.
These ships shall bear aid and
assistance to the wounded and
wrecked belligerents, without dis-
tinction of nationality.
They must take care not to in-
terfere in any way with the move-
ments of the combatants. Dur-
ing and after the battle they must
do their duty at their own risk
and peril.
The belligerents shall have the
right of controlling and visiting
them; they will be at liberty to
refuse their assistance, to order
them to depart, and to detain
them if the exigencies of the case
require such a step.
The wounded and wrecked
picked up by these ships cannot
be reclaimed by either of the com-
Les batiments hopitaux rnili-
taires seront distingu£s par une
peinture exterieure blanche avec
batterie verte.
ART. XIII. Les navires hospita-
liers, equipes aux frais des soci6-
t£s de secours reconnues par les
Gouvernements signataires de
cette Convention, pourvus de com-
mission emanee du Souverain qui
aura donne 1'autorisation expresse
de leur armement, et d'un docu-
ment de 1'autorite" maritime com-
pe"tente, stipulant qu'ils ont ete
soumis a son controle pendant leur
armement et a leur depart final,
et qu'ils etaient alors uniquement
appropri£s au but de leur mission,
seront considers comme neutres
ainsi que tout leur personnel. Us
seront respecters et proteges par
les belligerants.
Us se leront reconnaitre en his-
sant avec leur pavilion national,
le pavilion blanc a croix rouge.
La marque distinctive de leur per-
sonnel dans 1'exercice de ses fonc-
tions sera un brassard aux m4mes
couleurs; leur peinture exterieure
sera blanche avec batterie rouge.
Ces navires porteront secours et
assistance aux blesses et aux
naufrag£s des belligerants sans
distinction de nationality.
Us ne devront gener en aucune
maniere les mouvements des com-
battants. Pendant et apres le
combat, ils agiront a leurs risques
et perils.
Les belligerants auront sur eux
le droit de controle et de visite;
ils pourront refuser leur concours,
leur enjoindre de s'eloigner et les
d6tenir si la gravite des circon-
stances 1'exigeait.
Les blessed et les nauf rages
recueillis par ces navires ne pour-
ront etre reclames par aucun des
MILITAEY LAWS OF THE UNITED STATES.
1039
batants, and they will be required
not to serve during the continu-
ance of the war.
ART. XIV. In naval wars any
strong presumption that either
belligerent takes advantage of
the benefits of neutrality, with
any other view than the interest
of the sick and wounded, gives to
the other belligerent, until proof
to the contrary, the right of sus-
pending the Convention, as re-
gards such belligerent.
Should this presumption be-
come a certainty, notice may be
given to such belligerent that the
Convention is suspended with re-
gard to him during the whole con-
tinuance of the war.
ART. XV. The present act shall
be drawn up in a single original
copy, which shall be deposited in
the Archives of the Swiss Confed-
eration.
An authentic copy of this Act
shall be delivered, with an invi-
tation to adhere to it, to each of
the signatory Powers of the Con-
vention of the 22d of August,
1864, as well as to those that have
successively acceded to it.
In faith whereof, the under-
signed commissaries have drawn
up the present project of addi-
tional articles and have apposed
thereunto the seals of their arms.
[Done at Geneva, the twentieth
day of the month of October, of the
year one thousand eight hundred and
sixty-eight.] l
VON B.CEDER.
F. LCEFFLER.
KOHLER.
DR. MUNDY.
STEINER.
DR. DOMPIERRE.
VlSSCHERS.
J. B. G. GALIPFE.
A. COUPVENT DBS BoiS.
H. DE PREVAL.
combattants, et il leursera impose
de ne pas servir pendant la duree
de la guerre.
ART. XIV. Dans les guerres Rights of bel-
... , . ligerents to sus-
mantimes, toute forte presomp-pend conven-
tion que Tun des belligerants tion- etc-
profite du benefice de la neutralite
dans un autre interet que celui
des blesses et des malades, permet
a P autre bellige>ant, jusqu'a
preuve du contraire, de suspendre
la Convention a son egard.
Si cette presomption devient Notice of sus-
pension of Con-
une certitude, la Convention peut vention, etc. to
meme lui etre d6nonce"e pour toute be glven<
la duree de la guerre.
ART. XV. Le present acte sera . Act embodied
. in one original
dresse en un seul exemplaire on- copy and depos-
ginal qui sera depose aux archives j^swfss
de la Confederation suisse. eration.
Une copie authentique de cet Au then tic copy
Vfi. , .,. ., to be delivered
acte sera dehvree, avec, 1 in vita- to signatory pow-
tion d'y adherer, a chacune desers'etc-
Puissances signataires de la Con-
vention du 22 aout 1864, ainsi qu'a
celles qui y ont successivement
acced4.
En foi de quoi les Commissaires
soussignes ont dresse le present
Projet d' articles additionnels et y
ont appos£ le cachet de leurs
armes.
Fait & Geneve le vingtieme jour seals of com-
du mois d'octobre de 1'an mil huit missaries.
cent soixante-huit.1
VON R(EDBB.
F. LCEFFLER.
KOHLER.
DR. MUNDY.
STEINER.
DR. DOMPIERRE.'
VlSSCHERS.
J. B. G. GALIFFE.
A. COUPVENT DES BOIS.
H. DE PREVAL.
1 The proclamation of the President of the United States promulgating the original
treaty and the articles additional thereto bears date July 26, 1882 (22 Stat. L., 126).
1040 MILITARY LAWS OF THE UNITED STATES.
JOHN SAVILLE LUMLEY. JOHN SAVILLE LUMLEY.
H. R. YELVERTON. H. R. YELVERTON.
D. FELICE BAROFFIO. D. FELICE BAROFFIO.
PAOLO COTTRAU. PAOLO COTTRAT.
H. A. VAN KARNEBEEK. H. A. VAN KARNEHEEK.
WESTENBERG. WESTENBERG.
F. N. STAAFF. F. N. STAAFF.
D. H. DUFOUR. G. H. DUFOUR.
G. MOYNIER. G. MOYNIER.
DR. S. LEHMANN. DR. S. LEHMANN.
HU.SNY. HUSNY.
DR. C. HAHN. DR. C. HAHN.
DR. FICHTE. DR. FICHTE.
AGEEEMENT FOR THE ADAPTATION OF MAR-
ITIME WARFARE TO THE RULES OF THE
GENEVA CONVENTION OF AUGUST 22, 1864.
ART. I. Military hospital ships — that is, ships con-
structed or fitted out by States especially and solely with
a view to give assistance to the sick, wounded, and ship-
wrecked, the names of which shall have been communi-
cated to the belligerent powers at the opening or during
the continuance of hostilities, and in every case before
being placed in service, are to be respected and may not
be captured during the continuance of hostilities. These
vessels are not assimilated to ships of war in matters per-
taining to their sojourn in neutral ports.
ART. II. Hospital ships equipped wholly or in part at
the expense of private individuals, or aid societies which
have been officially recognized, are equally to be respected
and exempted from capture, if the belligerent power to
which they are attached has given them an official com-
mission, and has notified their names to the adverse power
at the opening of hostilities, or during their progress, but
in every case before being placed in service. These ships
shall carry a document from competent authority declar-
ing that they have been subjected to its inspection during
their equipment and at their final departure.
ART. III. Hospital ships equipped wholly or in part at
the expense of private individuals, or societies officially
recognized by neutral states, are to be respected and
exempted from capture, if the neutral power to which they
are subject issues commissions to them, and notifies their
names to the belligerent powers at the outbreak of hostili-
ties or during their continuance, but in all cases before
being placed in service.
ART. IV. Ships mentioned in Articles I, II, and III shall
carry aid and assistance to the sick, wounded, and ship-
wrecked individuals of the belligerent armies without dis-
tinction of nationality. The governments agree not to
use these ships for any warlike purpose. These ships
shall not embarrass in any manner the movements of the
22924—08 66 1041
1042 MILITARY LAWS OF THE UNITED STATES.
combatants. During and after the combat they shall act
at their own risk and hazard. Belligerents shall have the
right to visit and inspect them; they may refuse assistance
to them, or require them to remove to a distance, or
impose upon them a fixed sailing course, and may place a
commissioner on board; they may even detain them if cir-
cumstances demand it. As far as possible orders given by
belligerents to hospital ships shall be entered in their log
books.
ART. V. Military hospital ships shall be distinguished
by an exterior coloring of white with a green horizontal
band of about one meter and a half in width. Ships men-
tioned in Articles II and III shall be distinguished by an
exterior coloring of white with a red horizontal band of
about one meter and a half in width. The small boats of
the ships just mentioned, as well as the small boats which
may be employed in hospital service, shall be distinguished
by similar painting. All hospital ships shall be recognized
by hoisting with their national flags the red cross embla-
zoned upon the white flag, as prescribed by the Geneva
Convention.
AKT. VI. Commercial vessels, yachts, or neutral small
boats conve}ring or receiving sick, wounded, or ship-
wrecked persons are not liable to capture for engaging in
such transport; but they remain liable to capture for any
violations of neutrality which they may have committed.
ART. VII. The personnel of the medical and hospital
service, including chaplains, of every captured vessel, is
inviolable and can not be made prisoners of war. They
carry away with them, on quitting the ship, the surgical
instruments and appliances which are their personal prop-
erty. These persons shall continue to perform their func-
tions so long as may be necessary, and they may be
withdrawn when the commander in chief deems such with-
drawal possible. Belligerents are to secure to such persons
who may fall into their hands the full enjoyment of their
salaries.
ART. VIII. Persons in the military or naval service, to
whatever nation they may belong, who are sick, wounded,
or shipwrecked, shall be protected and cared for by their
captors.
ART. IX. Sick, wounded, and shipwrecked persons in
the service of a belligerent who fall into the hands of the
enemy become prisoners of war. It is for the enemy to
decide, according to the circumstances of the case, whether
MILITARY LAWS OF THE UNITED STATES. 1043
it is expedient to hold them, to send them to a port of their
own nation, or to a neutral port, or even to a port of the
enemy. In the last case the prisoners so returned to their
country can not serve during* the continuance of the war.
ART. X. Sick, wounded, or shipwrecked persons who
are sent to a neutral port, with the consent of the local
authority, shall, unless .a contrary arrangement be entered
into between the neutral state and the belligerents, be
subjected to such restraint by the neutral state that it will
be impossible for them to again take part in the opera-
tions of the war. The expenses cf hospital treatment and
internment of the sick, wounded, and shipwrecked shall
be borne by the state to which they belong.
ART. XL The rules contained in the foregoing article
are obligatory only upon the contracting powers in the
event of war between two or more of them. The said
rules shall cease to be obligatory from the instant when,
in a war between contracting powers, a noncontracting
power joins one of the belligerents.
ART. XII. The present Convention shall be ratified with
the briefest possible delay. The ratifications shall be
deposited at The Hague; a minute shall be prepared, on
the deposit of each ratification, of which a properly authenti-
cated copy shall be transmitted, through diplomatic chan-
nels, to each of the contracting powers.
ART. XIII. Nonsignatory powers who have accepted
the Geneva Convention of August 22, 1864, are permitted
to adhere to this Convention. To that end they shall make
known their adhesion to the contracting powers by a noti-
fication in writing, addressed to the Government of the
Netherlands, and, communicated by it to all of the other
contracting powers.
ART. XIV. If it should happen that one of the high con-
tracting parties should disavow the present Convention,
such disavowal shall not become operative until one year
after it shall have been notified, in writing, to the Govern-
ment of the Netherlands and immediately communicated
by the latter to all of the other high contracting powers.
This disavowal shall be operative only in respect to the
power which shall have given notice of it.
Done at The Hague this 29th day of July, 1899.
THE AMERICAN NATIONAL RED CROSS.
Whereas on the twenty-second of August, eighteen hun
dred and sixty -four, at Geneva, Switzerland, plenipoten-
tiaries respective!}^ representing Italy, Baden, Belgium,
Denmark, Spain, Portugal, France, Prussia, Saxony, and
Wurtemburg, and the Federal Council of Switzerland
agreed upon ten articles of a treaty or convention for the
purpose of mitigating the evils inseparable from war; of
suppressing the needless severity and ameliorating the con-
dition of soldiers wounded on the field of battle; and par-
ticularly providing, among other things, in effect, that
persons emploj^ed in hospitals, and in affording relief to
the sick and wounded, and supplies for this purpose, shall
be deemed neutral and entitled to protection; and that a
distinctive and uniform flag shall be adopted for hospitals
and ambulances, and convoys of sick and wounded, and an
arm badge for individuals neutralized; and
Whereas said treaty has been ratified by all of said
nations, and by others subsequently, to the number of
forty-three or more, including the United States of Amer-
ica; and
Whereas a permanent organization is an agency needed
in every nation to carry out the purposes of said treaty,
and especially to secure supplies and to execute the humane
objects contemplated by said treaty, with the power to
adopt and use the distinctive flag and arm badge specified
by said treaty in article seven, on which shall be the sign
of the Red Cross, for the purpose of cooperating with the
"Comite International de Secours aux Militaires Blesses"
(International Committee of Relief for the Wounded in
War); and
Whereas, in accordance with the requirements of customs
of said international body, such an association, adopting
and using said insignia, was formed in the city of Wash-
ington, District of Columbia, in July, eighteen hundred
and eigmty-one, known as "The American National Asso-
ciation of the Red Cross," and reincorporated April
1044
MILITAEY LAWS OF THE UNITED STATES. 1045
seventeenth, eighteen hundred and ninety-three, under the
laws of the District of Columbia; and
Whereas it is believed that the importance of the work
demands a reincorporation by the Congress of the United
States: Now, therefore,
Be it enacted by the Senate and Hotise of Representatives
of the United States of America in Congress assembled,
That Clara Barton, George Kennan, Julian B. Hubbell, of
the District of Columbia; Stephen E. Barton, of New York;
William R. Day, of Ohio; Brainard H. Warner, Ellen*
Spencer Mussey, Alvey A. Adee, of the District of Co-
lumbia; Joseph Sheldon, of Connecticut; Charles F. Fair-
child, William Letchwerth, of New York City; Hilary A.
Herbert, of Alabama; Joseph Gardner, Enola Lee Gard-
ner, of Bedford, Indiana; John W. Noble, of Saint Louis,
Missouri; Richard Olney, of Boston, Massachusetts; Alex-
ander W. Terrell, of Austin, Texas; Leslie M. Shaw,
Benjamin Tillinghast, of Iowa; Abraham C. Kaufman, of
Charleston, South Carolina; J. B. Vinet, of New Orleans,
Louisiana; George Gray, of Delaware; Redfield Proctor,
of Vermont; George F. Hoar, of Massachusetts; Charles
A. Russell, of Connecticut; Robert W. Miers, of Indiana;
George C. Boldt, William T. Wardwell, of New York;
Daniel Hastings, J. Wilkes O'Neill, of Pennsylvania;
Thomas F. Walsh, of Colorado; John G. Lemmon, of
California; Charles C. Glover, Walter S. Woodward,
Elizabeth Kibbey, Mabel T. Boardman, Walter Wyman,
Sumner I. Kimball, of the District of Columbia; Edward
Lowe, of Michigan; Harriette L. Reed, of Boston, Massa-
chusetts; William H. Sears, of Lawrence, Kansas; John
K. Elwell, of Vinland, Kansas; E. R. Ridgely, of Pitts-
burg, Kansas; James Tanner, John Hitz, S. W. Briggs,
Cony Curry, Lizzie W. Calver, Mary A. Logan, Mary L.
Barton, S. B. Hege, and Helena H. Mitchell, of Washing-
ton, District of Columbia; Emma L. Nichols, of Chilli-
cothe, Ohio; Lenora Halsted, of Saint Louis, Missouri;
P. V. DeGraw, of Philadelphia, Pennsylvania; Walter V.
Phillips, of Bridgeport, Connecticut, and their associates
and successors, are hereby created a body corporate and
politic in the District of Columbia.
SEC. 2. That the name of this corporation shall be "The
American National Red Cross," and by that name it shall
have perpetual succession, with the power to sue and be
sued in courts of law and equity within the jurisdiction of
the United States; to have and to hold such real and per-
1046 MILITARY LAWK OF 1MK UNITED STATKS.
sonal estate as shall be convenient and necessary to carry
out the purposes of this corporation hereinafter set forth,
such real estate to be limited to such quantity as may be
necessary for official use or office buildings; to adopt a
seal and the same to alter and destroy at pleasure; and to
have the right to have and to use, in carrying out its pur-
poses hereinafter designated, as an emblem and badge, a
Greek red cross on a white ground, as the same has been
described in the treaty of Geneva, August twenty -second,
* eighteen hundred and sixty -four, and adopted by the sev-
eral nations acceding thereto; to ordain and establish by-
laws and regulations not inconsistent with the laws of the
United States of America or any State thereof, and gen-
erally to do all such acts and things as may be necessary
to carry into effect the provisions of this Act and promote
the purposes of said organization; and the corporation
hereby created is designated as the organization which is
authorized to act in matters of relief under said treaty.
In accordance with article seven, of the treaty, the delivery
of the brassard allowed for individuals neutralized in time
of war shall be left to military authority.
SEC. 3. That the purposes of this corporation an*, and
shall be —
First. To furnish volunteer aid to the sick and wounded
of armies in time of war, in accordance with the spirit and
conditions of the conference of Geneva of October, eighteen
hundred and sixty-three, and also of the treaty of the Red
Cross, or the treaty of Geneva of August twenty-second,
eighteen hundred and sixty -four, to which the United
States of America gave its adhesion on March first, eight-
een hundred and eighty-two.
Second. And for said purposes to perform all the duties
devolved upon a national society by each nation which has
acceded to said treaty.
Third. To succeed to all the rights and property which
have been hitherto held and to all the duties which have
heretofore been performed by the American National Red
Cross as a corporation duly organized and existing under
the laws of the United States relating to the District of
Columbia, which organization is hereby dissolved.
Fourth. To act in matters of voluntary relief and in
accordance with the military and naval authorities as a
medium of communication between the people of the
United States of America and their armies, and to act in
uch matters between similar national societies of other
MILITARY LAWS OF THE UNITED STATES. 1047
governments through the "Comite International de Se-
cours " and the Government and the people and the armies
of the United States of America.
Fifth. And to continue and carry on a system of na-
tional and international relief in time of peace "and apply
the same in mitigating the sufferings caused by pestilence,
famine, fire, floods, and other great national calamities.
Sixth. And to devise and carry on measures for pre-
venting the same, and generally to promote measures of
humanity and the welfare of mankind.
SEC. 4. That from and after the passage of this Act it
shall be unlawful for any person within the jurisdiction of
the United States to falsely and fraudulently hold himself
out as, or represent or pretend himself to be a member
of or an agent for the American National Red Cross for
the purpose of soliciting, collecting, or recieving money
or material; or for any person to wear or display the sign
of the red cross, or any insignia colored in imitation
thereof, for the fraudulent purpose of inducing the belief
that he is a member of or an agent for the American
National Red Cross. If any person violates the provi-
sions of this section he shall be guilty of a misdemeanor,
and shall be liable to a fine of not less than one nor more
than five hundred dollars, or imprisonment for a term not
exceeding one year, or both, for each and every offense.
The fine so collected shall be paid to the American Na-
tional Red Cross. The appointment of the chief medical
officer shall not be made without the approval in writing
of the Secretary of War.
SEC. 5. That the said American National Red Cross
shall, on the first day of January of each year, make and
transmit to Congress a full, complete, and itemized report
of all receipts and expenditures of whatever kind, and of
its proceedings during the preceding year, and shall also
give such information concerning its transactions and
affairs as the Secretary of State may from time to time re-
quire, and, in respect of all business and proceedings in
which it may be concerned in conection with the War and
Navy Departments of the Government, shall make reports
to the Secretary of War and to the Secretary of the Navy,
respectively.
SEC. 6. That Congress shall have the right to repeal,
alter, or amend this Act at any time. Act of June 6, 1900
(31 Stat. Z.,077).
THE ARMY REORGANIZATION ACT OF FEBRU-
ARY 2, 1901.
THE ARMY OF THE UNITED STATES, COMPOSITION.
J?e it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
That from and after the approval of this Act the Ariny of
the United States, including the existing organizations,
shall consist of fifteen regiments of cavalry, a corps of
artillery, thirty regiments of infantry, one Lieutenant-
General, six major-generals, fifteen brigadier-generals, an
Adjutant-General's Department, an Inspector-General's
Department, a Judge- Advocate-General's Department, a
Quartermaster's Department, a Subsistence Department,
a Medical Department, a Pay Department, a Corps of En-
gineers, an Ordnance Department, a Signal Corps, the
officers of the Record and Pension Office, the chaplains,
the officers and enlisted men of the Army on the retired
list, the professors, corps of cadets, the army detachments
and band at the United States Militaiy Academy, Indian
scouts as now authorized by law, and such other officers
and enlisted men as may hereinafter be provided for: Pro-
vided, That when a vacancy shall occur through death,
retirement, or other separation from active service in the
office of storekeeper, now provided for b}7 law in the
Quartermaster's Department and Ordnance Department,
respectively, said office shall cease to exist. Act of Feb-
ruary 2, 1901 (31 Stat. L., 748).
CAVALRY.
That each regiment of cavalry shall consist of one colonel,
one lieutenant-colonel, three majors, fifteen captains, fif-
teen first lieutenants, and fifteen second lieutenants; two
veterinarians, one sergeant-major, one quartermaster-ser-
geant, one commissary-sergeant, three squadron sergeants-
major, two color-sergeants with rank, pay, and allowances
of squadron sergeant-major, one band, and twelve troops
organized into three squadrons of four troops each. Of
1048
MILITARY LAWS OF THE UNITED STATES. 1049
\
the officers herein provided, the captains and lieutenants
not required for duty with the troops shall be available for
detail as regimental and squadron staff officers and such
other details as may be authorized by law or regulations.
Squadron adjutants shall receive one thousand eight hun-
dred dollars per annum and the allowances of first lieuten-
ants; squadron quartermasters and commissaries shall
receive one thousand six hundred dollars per annum and
the allowances of second lieutenants. Each cavalry band
shall be organized as now provided by law. Each troop
of cavalry shall consist of one captain, one first lieutenant,
one second lieutenant, one first sergeant, one quartermaster-
sergeant, six sergeants, six corporals, two cooks, two far-
riers and blacksmiths, one saddler, one wagoner, two trum-
peters, and forty-three privates; the commissioned officers
to be assigned from among those hereinbefore authorized:
Provided, That the President, in his discretion, may
increase the number of corporals in any troop of cavalry
to eight, and the number of privates to seventy-six, but
the total number of enlisted men authorized for the whole
Army shall not at any time be exceeded. Sec. 2, ibid.
THE ARTILLERY CORPS.
That the regimental organization of the artillery arm of
the United States Army is hereby discontinued, and that
arm is constituted and designated as the Artillery Corps.
It shall be organized as hereinafter specified and shall
belong to the line of the Army. Sec. 3, ibid.
That the Artillery Corps shall comprise two branches —
the coast artillery and the field artillery. The coast artil-
lery is defined as that portion charged with the care and
use of the fixed and movable elements of land and coast
fortifications, including the submarine mine and torpedo
defenses; and the field artillery as that portion accompany-
ing an army in the field, and including field and light
artillery proper, horse artillery, siege artillery, mountain
artillery, and also machine-gun batteries: Provided, That
this shall not be construed to limit the authority of the
Secretary of War to order coast artillery to any duty which
the public service demands or to prevent the use of machine
or other field guns by any other arm of the service under
the direction of the Secretary of War. Sec. 4? ibid.
That all officers of artillery shall be placed on one list,
in respect to promotion, according to seniority in their
several grades, and shall be assigned to coast or to field
1050 MILITARY LAWS OF THE UNITED STATES.
artillery according to their special aptitude for the respec-
tive services. Sec. 5, ibid.
That the Artillery Corps shall consist of a Chief of Artil-
lery, who shall be selected and detailed by the President
from the colonels of artillery, to serve on the staff of the
general officer commanding the Army, and whose duties
shall be prescribed by the Secretary of War; fourteen colo-
nels, one of whom shall be the Chief of Artilley; thirteen
lieutenant-colonels, thirty-nine majors, one hundred and
ninety -five captains, one hundred and ninety-five first lieu-
tenants, one hundred and ninety -five second lieutenants;
and the captains and lieutenants provided for in this section
not required for duty with batteries or companies shall be
available for duty as staff officers of the various artillery
garrisons and such other details as may be authorized by
law and regulations; twenty-one sergeants-major, with
the rank, pay, and allowances of regimental sergeants-
major of infantry; twenty-seven sergeants-major, with the
rank, pay, and allowances of battalion sergeants-major of
infantry; one electrician sergeant to each coast artillery
post having electrical appliances; thirty batteries of field
artillery, one hundred and twenty-six batteries of coast
artillery, and ten bands organized as now authorized by
law for artillery regiments: Provided, That the aggregate
number of enlisted men for the artillery, as provided under
this Act, shall not exceed eighteen thousand nine hundred
and twenty, exclusive of electrician sergeants. Sec. 6, ibid.
Twelve of the veterinarians herein provided for may be
assigned to the artillery. Act of March 3, 1901 (31 Stat.
Z., 901).
That each company of coast artillery shall be organized
as is now prescribed by law for a battery of artillery : Pro-
vided, That the enlisted strength of any company may be
fixed, under the direction of the Secretary of War, accord-
ing to the requirements of the service to which it may be
assigned: And provided, That first-class gunners shall
receive two dollars a month, and second-class gunners one
dollar per month in addition to their pay. Sec. 7, act of
February 2, 1901 (31 Stat. L., 749).
That each battery of field artillery shall be organized as
is now prescribed by law, and the enlisted strength thereof
shall be fixed under the direction of the Secretary of War.
Sec. 8, ibid. ,
That the increase herein provided for the artillery shall
be made as follows: Not less than twenty per centum before
MILITARY LAWS OF THE UNITED STATES. 1051
July first, nineteen hundred and one, and not less than
twenty per centum each succeeding twelve months until
the total number provided for shall have been attained.
All vacancies created or caused by this Act shall be filled
by promotion according to seniority in the artillery arm.
Second lieutenants of infantry or cavalry may, in the dis-
cretion of the President, be transferred to the artillery
arm, taking rank therein according to date of commission,
and such transfers shall be subject to approval by a board
of artillery officers appointed to pass upon the capacity of
such officers for artillery service: Provided, That the
increase of officers of artillery shall be only in proportion
to the increase of men. Sec. 9, ibid.
INFANTRY.
That each regiment of infantry shall consist of one colo-
nel, one lieutenant-colonel, three majors, fifteen captains,
fifteeen first lieutenants, and fifteen second lieutenants;
one sergeant-major, one quartermaster-sergeant, one com-
missary-sergeant, three battalion sergeants-major, two
color sergeants, with rank, pay, and allowances of bat-
talion sergeants-major, one band, and twelve companies,
organized into three battalions of four companies each.
Of the officers herein provided, the captains and lieuten-
ants not required for duty with the companies shall be
available for detail as regimental and battalion staff offi-
cers and such other details as may be authorized by law or *
regulations. Battalion adjutants shall receive one thou-
sand eight hundred dollars per annum and the allowances
of first lieutenants, mounted; battalion quartermasters
and commissaries shall receive one thousand six hundred
dollars per annum and the allowances of second lieutenants,
mounted. Each intantry band shall be organized as now
provided by law. Each infantry company shall consist of
one captain, one first lieutenant, one second lieutenant, one
first sergeant, one quartermaster-sergeant, four sergeants,
six corporals, two cooks, two musicians, one artificer, and
forty -eight privates, the commissioned officers to be assigned
from those hereinbefore authorized: Provided, That the
President, in his discretion, may increase the number of
sergeants in any company of infantry to six, the number
of corporals to ten, and the number of privates to one hun-
dred and twenty-seven, but the total number of enlisted
men authorized for the whole Army shall not, at any time,
be exceeded. Sec. 10, ibid.
1052 MILITARY LAWS OP THE UNITED STATES.
ENGINEER TROOPS.
That the enlisted force of the Corps of Engineers shall
consist of one band and three battalions of engineers.
The engineers band shall be organized as now provided
by law for bands of infantry regiments. Each battalion
of engineers shall consist of one sergeant-major, one
quartermaster- sergeant, and four companies. Each com-
pany of engineers shall consist of one first sergeant, one
quartermaster-sergeant, with the rank, pay, and allow-
ances of sergeant, eight sergeants, ten corporals, two
musicians, two cooks, thirty-eight first-class and thirty-
eight second-class privates: Pwvided, That the President
may, in his discretion, increase the number of sergeants
in any company of engineers to twelve, the number of
corporals to eighteen, the number of first-class privates to
sixty-four, and the number of second-class privates to
sixty -four, but the total number of enlisted men author-
ized for the whole Army shall not, at any time, be ex-
ceeded: And provided, That officers detailed from the
Corps of Engineers to serve as battalion adjutants and
battalion quartermasters and commissaries shall, while so
serving, receive the pay and allowances herein authorized
for battalion staff officers of infantry regiments. Sec. 11^
ibid.
CHAPLAINS.
That the President is authorized to appoint, by and with
the advice and consent of the Senate, chaplains in the
Army, at the rate of one for each regiment of cavalry and
infantry in the United States service and twelve for the
corps of artillery, with the rank, pay, and allowances of
captains of infantry: Provided, That no person shall be
appointed a chaplain in the Regular Army who shall have
passed the age of forty years, nor until he shall have
established his fitness as required by existing law: And
provided, That the office of post chaplain is abolished, and
the officers now holding commissions as chaplains, or who
may hereafter be appointed chaplains, shall be assigned to
regiments or to corps of artillery. Chaplains may be
assigned to such stations as the Secretary of War shall
direct, and they may be transferred, as chaplains, from
one branch of the service or from one regiment to another
by the Secretary of War, without further commission.
When serving in the field, chaplains shall be furnished
MILITAEY LAWS QF THE UNITED STATES. 1053
with necessary means of transportation by the Quarter-
master's Department. Sec. 1%, ibid.
THE ADJUTANT-GENERAL'S DEPARTMENT.
That the Adjutant-General's Department shall consist of
one Adjutant-General with the rank of major-general, and
when a vacancy shall occur in the office of Adjutant-General
on the expiration of the service of the present incumbent,
by retirement or otherwise, the Adjutant-General shall
thereafter have the rank and pay of a brigadier-general,
five assistant adjutants-general with the rank of colonel,
seven assistant adjutants-general with the rank of lieuten-
ant-colonel, and fifteen assistant adjutants-general with the
rank of major: Provided, That all vacancies created or
caused by this section shall, as far as possible, be filled by
promotion according to seniority of officers of the Adjutant-
General's Deparment. Sec. 13, ibid.
THE INSPECTOR-GENERAL'S DEPARTMENT.
That the Inspector-General's Department shall consist of
one Inspector-General with the rank of brigadier-general,
four inspectors-general with the rank of colonel, four
inspectors -general with the rank of lieutenant-colonel, and
eight inspectors-general with the rank of major: Provided,
That all vacancies created or caused by this section shall
be filled, as far as possible, by promotion according to
seniority of officers of the Inspector-General's Department.
Sec. 14, ibid.
Upon the occurrence of a vacancy in the grade of colo-
nel in the Inspector-General's Department after the pres-
ent lieutenant-colonels therein shall have been promoted
or retired, such vacancy shall not be filled, and thereafter
the number of officers authorized for that department shall
be as follows: One inspector-general with the rank of
brigadier-general; three inspectors-general with the rank
of colonel; four inspectors-general with the rank of lieu-
tenant-colonel, and nine inspectors-general with the rank
of major. Act of March 3, 1901 (31 Stat. L., 899).
THE JUDGE-ADVOCATE-GENERAL'S DEPARTMENT.
That the Judge- Advocate-General's Department shall
consist of one Judge- Advocate-General with the rank of
brigadier-general, two judge-advocates with the rank of
colonel, three judge-advocates with the rank of lieutenant-
1054 MILITARY LAWS OF THE UNITED STATES.
colonel, six judge-advocates with the rank of major, and
for each geographical department or tactical division of
troops not provided with a judge-advocate from the list
of officers holding permanent commissions in the Judge-
Advocate-General's Department one acting judge-advocate
with the rank, pay, and allowances of captain, mounted.
Promotions to vacancies above the grade of major, created
or caused by this Act, shall be made, according to senior-
ity, from officers now holding commission in the Judge-
Advocate-General's Department. Vacancies created or
caused by this Act in the grade of major may be filled by
appointment of officers holding commissions as judge-
advocate of volunteers since April twenty-first, eighteen
hundred and ninety-eight. Vacancies which may occur
thereafter in the grade of major in the Judge- Advocate-
General's Department shall be filled by the appointment
of officers of the line, or of persons who have satisfactorily
served as judge-advocates of volunteers since April twenty-
first, eighteen hundred and ninety-eight, or of persons
from civil life who at date of appointment are not over
thirty-five years of age and who shall pass a satisfactory
examination to be prescribed by the Secretary of War.
Acting judge-advocates provided for herein shall be
detailed from officers of the grades of captain or first
lieutenant of the line of the Army who while so serving
shall continue to hold their commissions in the arm of the
service to which they permanently belong. Upon comple-
tion of a tour of duty not exceeding four years they shall be
returned to the arm in which commissioned, and shall not
be again detailed until they shall have completed two
years' duty with the arm of the service in which commis-
sioned. Sec. 15, act of February 2, 1901 (31 Stat. Z., 751).
THE QUARTERMASTER'S DEPARTMENT.
That the Quartermaster's Department shall consist of
one Quaitermaster-General with the rank of brigadier-
general, six assistant quartermasters-general with the rank
of colonel, nine deputy quartermasters-general with the
rank of lieutenant-colonel, twenty quartermasters with
the rank of major, sixty quartermasters with the rank of
captain, mounted; the military storekeeper now provided
for by law. and one hundred and fifty post quartermaster-
sergeants: Provided, That all vacancies in the grade of
colonel, lieutenant-colonel, and major created or caused
MILITARY LAWS OF THE UNITED STATES. 1055
by this section shall be filled by promotion according to
seniority, as now prescribed by law. That to fill original
vacancies in the grade of captain created by this Act in
the Quartermaster's Department the President is author-
ized to appoint officers of volunteers commissioned in the
Quartermaster's Department since April twenty-first,
eighteen hundred and ninety-eight: Provided further,
That the President is authorized to continue in service,
during the present emergency, for duty in the Philippine
Islands and on transports, twenty-four captains and assist-
ant quartermasters of volunteers. This authority shall
extend only for the period when their services shall be
absolutely necessary. Sec. 16, ibid.
9
THE SUBSISTENCE DEPARTMENT.
That the Subsistence Department shall consist of one
Commissary -General with the rank of brigadier-general,
three assistant commissaries-general with the rank of
colonel, four deputy commissaries-general with the rank
of lieutenant-colonel, nine commissaries with the rank of
major, twenty-seven commissaries with the rank of captain,
mounted, and the number of commissary-sergeants now
authorized by law, who shall hereafter be known as post
commissary-sergeants: Provided, That all vacancies in the
grades of colonel, lieutenant-colonel, and major, created
or caused by this section, shall be filled by promotion,
according to seniority, as now prescribed by law. That
to fill original vacancies in the grade of captain, created
by this Act, in the Subsistence Department, the President
is authorized to appoint officers of volunteers commis-
sioned in the Subsistence Department since April twenty-
first, eighteen hundred and ninety-eight. Sec. 17, ibid.
THE MEDICAL DEPARTMENT.
That the Medical Department shall consist of one Sur-
geon-General with the rank of brigadier-general, eight
assistant surgeons- general with the rank of colonel, twelve
deputy surgeons-general with the rank of lieutenant-
colonel, sixty surgeons with the rank of major, two hun-
dred and forty assistant surgeons with the rank of captain
or first lieutenant, the Hospital Corps, as now authorized
by law, and the Nurse Corps: Provided, That all vacancies
in the grades of colonel, lieutenant-colonel, and major
created or caused by this section shall be filled by promo-
1056 MILITARY LAWS OF THE UTTCTED STATES.
tion according to seniority, subject to the examination
now prescribed by law: And provided, That the period
during which any assistant surgeon shall have served as a
surgeon or assistant surgeon in the Volunteer Army dur-
ing the war with Spain or since shall be counted as a por-
tion of the five years' service required to entitle him to
rank of captain : And provided also, That nothing in this
section shall affect the relative rank for promotion of any
assistant surgeon now in the service, or who may be here-
after appointed therein, as determined by the date of his
appointment or commission and as fixed in accordance with
existing law and regulations: Provided further, That in
emergencies the Surgeon-General of the Army, with the
approval of the Secretary of War, may appoint as many
contract surgeons as may be necessary, at a compensation
not to exceed one hundred and fifty dollars per month.
That on or after the passage of this Act the President
may appoint for duty in the Philippine Islands, fifty sur-
geons of volunteers with the rank and pay of major, and
one hundred and fifty assistant surgeons of volunteers
with the rank and pay of captain, mounted, for a period
of two years: Provided, That so many of these volunteer
medical officers as are not required shall be honorably dis-
charged the service whenever in the opinion of the Sec-
retary of War their services are no longer necessary:
Provided further, That assistant surgeons in the Volun-
teer Army of the United States commissioned by the
President as captains, in accordance with the provisions of
an Act for increasing the efficiency of the Army of the
United States, and for other purposes, approved March
second, eighteen hundred and ninety-nine, shall be entitled
to the pay of a captain, mounted, from the date of their
acceptance of such commission, as prescribed by law:
Provided, That the Surgeon-General of the Army, with
the approval of the Secretary of War, be, and he is hereby,
authorized to employ dental surgeons to serve the officers
and enlisted men of the Regular and Volunteer Army, in
the proportion of not to exceed one for every one thou-
sand of said Army, and not exceeding thirty in all. Said
dental surgeons shall be employed as contract dental sur-
geons under the terms and conditions applicable to army
contract surgeons, and shall be graduates of standard
medical or dental colleges, trained in the several branches
of dentistry, of good moral and professional character,
and shall pass a satisfactory professional examination:
MILITARY LAWS OF THE UNITED STATES. 1057
Provided, That three of the number of dental surgeons
to be employed shall be first appointed by the Surgeon-
General, with the approval of the Secretary of War, with
reference to their fitness for assignment, under the direc-
tion of the Surgeon-General, to the special service of con-
ducting the examinations and supervising the operations
of the others; and for such special service an extra com-
pensation of sixty dollars a month will be allowed: Pro-
vided further, That dental college graduates now em-
ployed in the Hospital Corps who have been detailed for
a period of not less than twelve months to render dental
service to the Army and who are shown by the reports of
their superior officers to have rendered such service satis-
factorily may be appointed contract dental surgeons with-
out examination: Provided, That the Secretary of War
be authorized to appoint in the Hospital Corps, in addi-
tion to the two hundred hospital stewards now allowed by
law, one hundred hospital stewards: Provided, That men
who have served as hospital stewards of volunteer regi-
ments or acted in that capacity during and since the Span-
ish-American war for more than six months may be ap-
pointed hospital stewards in the Regular Army: And
provided further ; That all men so appointed shall be of
good moral character and shall have passed a satisfactory
mental and physical examination. Sec. 18, ibid.
THE NURSE COUPS (FEMALE).
That the Nurse Corps (female) shall consist of one Super-
intendent, to be appointed by the Secretary of War, who
shall be a graduate of a hospital training school having a
course of instruction of not less than two years, whose
term of office may be terminated at his discretion, whose
compensation shall be one thousand eight hundred dollars
per annum, and of as many chief nurses, nurses, and re-
serve nurses as may be needed. Reserve nurses may be
assigned to active duty when the emergency of the service
demands, but shall receive no compensation except when
on such duty: Provided, That all nurses in the Nurse
Corps shall be appointed or removed by the Surgeon-
General, with the approval of the Secretary of War; that
they shall be graduates of hospital training schools, and
shall have passed a satisfactory professional, moral, men-
tal, and physical examination: And provided, That the
Superintendent and nurses shall receive transportation and
22924—08 67
1058 MILITAEY LAWS OF THE UNITED STATES.
necessary expenses when traveling under orders; that the
pay and allowances of nurses, and of reserve nurses, when
on active service, shall be forty dollars per month when
on duty in the United States and fifty dollars per month
when without the limits of the United States. They shall
be entitled to quarters, subsistence, and medical attendance
during illness, and they may be granted leaves of absence
for thirty days, with pay, for each calendar year; and,
when serving as chief nurses, their pay may be increased
by authority of the Secretary of War, such increase not
to exceed twenty-five dollars per month. Payments to the
Nurse Corps shall be made by the Pay Department. Sec.
19, ibid.
That the grade of veterinarian of the second class in cav-
alry regiments, United States Army, is hereby abolished,
and hereafter the two veterinarians authorized for each
cavalry regiment and the one veterinarian authorized for
each artillery regiment1 shall receive the pay and allow-
ances of second lieutenants, mounted. Such number of
veterinarians as the Secretary of War may authorize shall
be employed to attend animals pertaining to the quarter-
master's or other departments not directly connected with
the cavalry and artillery regiments, at a compensation not
exceeding one hundred dollars per month. Sec. 20, ibid.
THE PAY DEPARTMENT.
That the Pay Department shall consist of one Paymaster-
General with the rank of brigadier-general, three assistant
paymasters-general with the rank of colonel, four deputy
paymasters-general with the rank of lieutenant-colonel,
twenty paymasters with the rank of major, and twenty-
five paymasters with the rank of captain, mounted: Pro-
vided, That all vacancies in the grade of colonel and
lieutenant-colonel created or caused by this section shall
be filled by promotion according to seniority, as now pre-
scribed by law, and no more appointments to the grade of
major and paymaster shall be made until the number of
majors and paymasters is reduced below twenty: And
provided, That persons who have served in the Volunteer
Army since April twenty-first, eighteen hundred and
ninety-eight, as additional paymasters may be appointed
to positions in the grade of captain, created by this section.
Replaced by a provision of the act of March 3, 1901 (31 Stat. L., 901), which
authorizes twelve veterinarians for the Artillery Corps.
MILITAEY LAWS OF THE UNITED STATES. 1059
So long as there remain surplus majors an equal number
of vacancies shall be held in the grade of captain, so that
the total number of paymasters authorized by this section
shall not be exceeded at any time. Sec. 21, ibid.
THE CORPS OF ENGINEERS.
That the Corps of Engineers shall consist of one Chief
of Engineers with the rank of brigadier-general, seven
colonels, fourteen lieutenant-colonels, twenty-eight majors,
forty captains, forty first lieutenants, and thirty second
lieutenants. The enlisted force provided in section eleven
of this Act and the officers serving therewith shall consti-
tute a part of the line of the Army: Provided, That the
Chief of Engineers shall be selected as now provided by
law, and hereafter vacancies in the Corps of Engineers in all
other grades above that of second lieutenant shall be filled,
as far as possible, by promotion according to seniority from
the Corps of Engineers: And provided also, That vacan-
cies remaining in the grades of first and second lieutenant
may be filled by transfer of officers of the Regular Army,
subject to such professional examination as may be ap-
proved by the Secretary of War. Vacancies in the grade
of second lieutenant not filled by transfer shall be left for
future promotions from the corps of cadets at the United
States Military Academy. Sec. 22, ibid.
THE ORDNANCE DEPARTMENT.
That the Ordnance Department shall consist of one Chief
of Ordnance with the rank of brigadier-general, four col-
onels, six lieutenant-colonels, twelve majors, twenty-four
captains, and twenty-four first lieutenants, the ordnance
storekeeper, and the enlisted men, including ordnance ser-
geants, as now authorized by law. All vacancies created
or caused by this section shall, as far as possible, be filled
by promotion according to seniority as now prescribed by
law. Sec. 23, ibid.
THE SIGNAL CORPS.
That the Signal Corps shall consist of one Chief Signal
Officer with the rank of brigadier-general,4one colonel, one
lieutenant-colonel, four majors, fourteen captains, fourteen
first lieutenants, eighty first-class sergeants, one hundred
and twenty sergeants, one hundred and fifty corporals,
two hundred and fifty first-class privates, one hundred and
1060 MILITARY LAWS OF THE UNITED STATES.
fifty second-class privates, and ten cooks: Provided, That
vacancies created or caused by this section shall be filled
by promotion of officers of the Signal Corps according to
seniority, as now provided by law. Vacancies remaining
after such promotions may be filled by appointment of
persons who have served in the Volunteer Signal Corps
since April twenty-first, eighteen hundred and ninety-
eight: Provided, That the President is authorized to con-
tinue in service during the present emergency, for duty
in the Philippine Islands, five volunteer signal officers with
the rank of first lieutenant and five volunteer signal offi-
cers with the rank of second lieutenant. This authority
shall extend only for the period when their services may
be absolutely necessary. Sec. 24, ibid.
THE RECORD AND PENSION OFFICE.
That the officers of the Record and Pension Office of
the War Department shall be a chief of said office with
the rank of brigadier-general and an assistant chief of said
office with the rank of major: Provided, That any person
appointed to be Chief of the Record and Pension Office
after the passage of this Act shall have the rank of col-
onel. Sec. 25, ibid.
PROMOTIONS AND DETAILS.
That so long as there remain any officers holding per-
manent appointments in the Adjutant-General's Depart-
ment, the Inspector-General's Department, the Quarter-
master's Department, the Subsistence Department, the
Pay Department, the Ordnance Department, and the Sig-
nal Corps, including those appointed to original vacancies
in the grades of captain and first lieutenant under the
provisions of sections sixteen, seventeen, twenty-one, and
twenty-four of this Act, they shall be promoted according
to seniority in the several grades, as now provided by law,
and nothing herein contained shall be deemed to apply to
vacancies which can be filled by such promotions or to the
periods for which the officers so promoted shall hold their
appointments, and when any vacancy, except that of the
chief of the department or corps, shall occur, which can
not be filled by promotion as provided in this section, it
shall be filled by detail from the line of the Army, and
no more permanent appointments shall be made in those
departments or corps after the original vacancies created
MILITAEY LAWS OF THE UNITED STATES. 1061
by this Act shall have been filled. Such details shall be
made from the grade in which the vacancies exist, under
such system of examination as the President may from
time to time prescribe.
All officers so detailed shall serve for a period of four
years, at the expiration of which time they shall return to
duty with the line, and officers below the rank of lieutenant-
colonel shall not again be eligible for selection in any staff
department until they shall have served two years with
the line.
That when vacancies shall occur in the position of chief
of any staff corps or department the President may ap-
point to such vacancies, by and with the advice and con-
sent of the Senate, officers of the Army at large not below
the rank of lieutenant-colonel, and who shall hold office
for terms of four years. When a vacancy in the position
of chief of any staff corps or department is filled by the
appointment of an officer below the rank now provided by
law for said office, said chief shall, while so serving, have
the same rank, pay, and allowances now provided for the
chief of such corps or department. And any officer now
holding office in any corps or department who shall here-
after serve as chief of a staff corps or department and shall
subsequently be retired, shall be retired with the rank,
pay, and allowances authorized by law for the retirement of
such corps or department chief: Provided, That so long as
there remain in service officers of any staff corps or depart-
ment holding permanent appointments, the chief of such
staff corps or department shall be selected from the offi-
cers so remaining therein. Sec. £6, ibid.
That each position vacated by officers of the line, trans-
ferred to any department of the staff for tours of service
under this Act, shall be filled by promotion in the line
until the total number detailed equals the number author-
ized for duty in each staff department. Thereafter vacan-
cies caused by details from the line to the staff shall be
filled by officers returning from tours of staff duty. If
under the operation of this Act the number of officers
returned to any particular arm of the service at any time
exceeds the number authorized by law in any grade, pro-
motions to that grade shall cease until the number has
been reduced to that authorized. Sec. 2? ', ibid.
Appointments to fill original vacancies in the lowest
grade in the Adjutant-General's Department, the Inspector-
General's Department, and Judge Advocate-General's
1062 MILITARY LAWS OF THE UNITED STATES.
Department, and in the grade of captain in the Quarter-
master's Department, Subsistence Department, and Pay
Department may be made from officers of volunteers
commissioned since April twenty-first, eighteen hundred
and ninety-eight, and the age limit prescribed as to chap-
lains shall not apply to persons who served as chaplains of
volunteers after said date who were under forty-two years
of age when originally appointed. Act of March 3, 1901
(31 Stat. Z., 900).
That vacancies in the grade of field officers and captain,
created by this Act, in the cavalry, artillery, and infantry
shall be filled by promotion according to seniority in each
branch, respectively. Vacancies existing after the pro-
motions have been made shall be provided for as follows:
A sufficient number shall be reserved in the grade of second
lieutenant for the next graduating class at the United
States Military Academy.
Persons not over forty years of age who shall have at
any time served as volunteers subsequent to April twenty-
first, eighteen hundred and ninety-eight, may be ordered
before boards of officers for such examination as may be
prescribed by the Secretary of War, and those who
establish their fitness before these examining boards may
be appointed to the grades of first or second lieutenant in
£he Regular Army, taking rank in the respective grades
according to seniority as determined by length of prior
commissioned service; but no person appointed under the
provisions of this section shall be placed above another in
the same grade with longer commissioned service, and
nothing herein contained shall change the relative rank of
officers heretofore commissioned in the Regular Army.
Enlisted men of the Regular Army or volunteers may
be appointed second lieutenants in the Regular Army to
vacancies created by this act, provided that they shall
have served one year, under the same conditions now
authorized by law for enlisted men of the Regular Army.
Sec. 28, act of February 2, 1901 (31 Stat. Z., 755).
ENLISTMENTS.
That to fill vacancies occurring from time to time in the
several organizations serving without the limits of the
United States with trained men, the President is author-
ized to enlist recruits in numbers equal to four per centum
in excess of the total strength authorized for such organi-
zations. Sec. 29, ibid.
MILITARY LAWS OF THE UNITED STATES. 1063
That the President is authorized to maintain the enlisted
force of the several organizations of the Army at their
maximum strength as fixed by this act during the present
exigencies of the service, or until such time as Congress
may hereafter otherwise direct: Provided, That in the
event of the enlistment of a soldier in the Army for the
period required by law, and after the expiration of one
year of service, should either of his parents die, leaving
the other solely dependent upon the soldier for support,
such soldier may, upon his own application, be honorably
discharged from the service of the United States upon due
proof being made of such condition to the Secretary of
War. Sec. 30, ibid.
That the Secretary of War is authorized to detach from
the Army at large such number of enlisted men as may be
necessary to perform duty at the various recruiting sta-
tions, and while performing such duty one member of
each party shall have the rank, pay, and allowances of
sergeant, and one the rank, pay, and allowances of cor-
poral of the arm of the service to which they respectively
belong. Sec. 31, ibid.
That when the exigencies of the service of any officer
who would be entitled to promotion upon examination re-
quire him to remain absent from any place where an ex-
amining board could be convened, the President is hereby
authorized to promote such officer, subject to examination,
and the examination shall take place as soon thereafter as
practicable. If upon examination the officer be found dis-
qualified for promotion, he shall, upon the approval of the
proceedings by the Secretary of War, be treated in the
same manner as if he had been examined prior to promo-
tion. Sec. 32, ibid.
The President of the United States is herebv authorized
to select from the brigadier-generals of volunteers two
volunteer officers, without regard to age, and, by and
with the advice and consent of the Senate, appoint them
brigadier-generals, United States Army, for the purpose
of placing them on the retired list.
And the President is also hereby authorized to select
from the retired list of the Army an officer not above the
rank of brigadier-general who may have distinguished
himself during the war with Spain, in command of a sep-
arate army, and to appoint, by and with the advice and
consent of the Senate, the officer so selected to be major-
general, United States Army, with the pay and allowances
1064 MILITARY LAWS OF THE UNITED STATES.
established by law for officers of that grade on the retired
list. Sec. 33, ibid.
That all officers who have served during the war with
Spain, or since, as officers of the Regular or Volunteer
Army of the United States, and have been honorably dis-
charged from the service by resignation or otherwise,
shall be entitled to bear the official title, and, upon occa-
sions of ceremony, to wear the uniform of the highest
grade they have held by brevet or other commission in
tin* regular or volunteer service. /Sec. 34-, ibid.
That the Secretary of War be, and he is hereby, author-
ized and directed to cause preliminary examinations and
surveys to be made for the purpose of selecting four sites
with a view to the establishment of permanent camp
grounds for instruction of troops of the Regular Army
and National Guard, with estimates of the cost of the sites
and their equipment with all modern appliances, and for
this purpose is authorized to detail such officers of the
Army as may be necessary to carry on the preliminary
work; and the sum of ten thousand dollars is hereby
appropriated for the necessary expense of such work, to
be disbursed under the direction of the Secretary of War:
Provided, That the Secretary of War shall report to Con-
gress the result of such examination and surveys, and no
contract for said sites shall be made nor any obligation
incurred until Congress shall approve such selections and
appropriate the money therefor. Sec. 35, ibid.
That when in his opinion the conditions in the Philip-
pine Islands justify such action the President is author-
ized to enlist natives of those islands for service in the
Army, to be organized as scouts, with such officers as he
shall deem necessary for their proper control, or as troops
or companies, as authorized by this act, for the Regular
Army. The President is further authorized, in his discre-
tion, to form companies, organized as are companies of
the Regular Army, in squadrons or battalions, with officers
and noncommissioned officers corresponding to similar
organizations in the cavalry and infantry arms. The total
number of enlisted men in said native organizations shall
not exceed twelve thousand, and the total enlisted force
of the line of the Army, together with such native force,
shall not exceed at any one time one hundred thousand.
The majors to command the squadrons and battalions
shall be selected by the President from captains of the
line of the Regular Army, and while so serving they shall
MILITAEY LAWS OF THE UNITED STATES. 1065
have the rank, pay, and allowances of the grade of major.
The captains of the troops or companies shall be selected
by the President from first lieutenants of the line of the
Regular Army, and while so serving they shall have the
rank, pay, and allowances of captain of the arm to which
assigned. The squadron and battalion staff officers, and
first and second lieutenants of companies, may be selected
from the noncommissioned officers or enlisted men of the
Regular Army of not less than two years' service, or from
officers or noncommissioned officers or enlisted men serv-
ing, or who have served, in the volunteers subsequent to
April twenty-first, eighteen hundred and ninety-eight,
and officers of those grades shall be given provisional
appointments for periods of four years each, and no such
appointments shall be continued for a second or subsequent
term unless the officer's conduct shall have been satisfac-
tory in every respect. The pay and allowances of pro-
visional officers of native organizations shall be those
authorized for officers of like grades in the Regular Army.
The pay, rations, and clothing allowances to be authorized
for the enlisted men shall be fixed by the Secretary of War,
and shall not exceed those authorized for the Regular
Army.
When, in the opinion of the President, natives of the
Philippine Islands shall, by their services and character,
show fitness for command, the President is authorized to
make provisional appointments to the grades of second
and first lieutenants from such natives, who, when so
appointed, shall have the pa}^ and allowances to be fixed
by the Secretary of War, not exceeding those of corre-
sponding grades of the Regular Army. Sec. 36, ibid.
That the President is authorized to organize and main-
tain one provisional regiment of not exceeding three bat-
talions of infantry, for service in Porto Rico, the enlisted
strength thereof to be composed of natives of that island as
far as practicable. The regiment shall be organized as to
numbers as authorized for infantry regiments of the Reg-
ular Army. The pay, rations, and clothing allowances to
be authorized for the enlisted men shall be fixed by the
Secretary of War, and shall not exceed those authorized for
the Regular Army. The field officers shall be selected from
officers of the next lower grades in the Regular Army and
shall, while so serving in the higher grade, have the rank,
pay, and allowances thereof. The company and regimental
and battalion staff officers shall be appointed by the Presi-
1066 MILITARY LAWS OF THE UNITED STATES.
dent. The President may , in his discretion, continue with
their own consent the volunteer officers and enlisted men of
the Porto Rico regiment, whose terms of service expire by
law July first, nineteen hundred and one. Enlistments for
the Porto Rico regiment shall be made for periods of three
years, unless sooner discharged. The regiment shall be
continued in service until further directed by Congress.
Sec. 37, ibid.
The sale of or dealing in beer, wine or any intoxicating
liquors by any person in any post exchange or canteen or
army transport or upon any premises used for military
purposes by the United States, is hereby prohibited. The
Secretary of War is hereby directed to carry the provisions
of this section into full force and effect. Sec. 38, ibid.
That nothing in this Act shall be held or construed so as
to discharge any officer from the Regular Army or to
deprive him of the commission which he now holds therein.
Sec. 39, ibid.
That the President be, and he is hereby, authorized to
prescribe the kinds and quantities of the component articles
of the army ration, and to direct the issue of substitutive
equivalent articles in place of any such components when-
ever, in his opinion, economy and a due regard to -the
health and comfort of the troops may so require. Sec. 40,
ibid.
That the distinctive badges adopted by military societies
of men "who served in the armies and navies of the United
States during the Spanish-American war and the incident
insurrection in the Philippines" may be worn upon all
occasions of ceremony by officers and men of the Army
'and Navy of the United States who are members of said
organizations in their own right. Sec. 41, ibid.
That all laws and parts of laws inconsistent with the pro-
visions of this act be, and the same are hereby, repealed.
Sec. 4%, ibid.
MAXIMUM PUNISHMENT CODE.
GENERAL, ORDERS, ) HEADQUARTERS OF THE ARMY,
ADJUTANT-GENERAL'S OFFICE,
No. 42. Washington, March 26, 1901.
By direction of the Secretary of War, the following Executive
order is published for the information and guidance of all concerned:
EXECUTIVE MANSION, March 12, 1901.
^ The Executive order, dated March 30, 1898, establishing limits of
punishment for enlisted men of the Army, under an act of Congress
approved September 27, 1890, and which was published in General
Orders, No. 16, 1898, Headquarters of the Army, is amended so as to
prescribe as follows:
ARTICLE L
In all cases of desertion the sentence may include dishonorable dis-
charge * and forfeiture of pay and allowances.
Subject to the modifications authorized in section 3 of this article,
the limit of the term of confinement (at hard labor) for desertion shall
be as follows:
SECTION 1. In case of surrender —
(a) When the deserter surrenders himself after an absence of not
more than thirty days, one year.
(b) When the surrender is made after an absence of more than
thirty days, eighteen months.
JIn a case where, because of previous convictions, the punishment may, under
General Orders, No. 42, of 1901, be dishonorable discharge, the department com-
mander may properly require the charges to be brought to trial before a general
court-martial, notwithstanding that, if the alternative punishment of dishonorable
discharge be not resorted to, the punishment would be within the power of an infe-
rior court. Dig. Opin., J. A. G., par. 1647.
An offense covered by General Orders, No. 42, of 1901, is cognizable by inferior
court-martial whenever the limit prescribed in the order may, by substitution of
punishment under the provisions of the order, be brought within the punishing
power of inferior courts as denned by the eighty-third Article of War. Ibid.,
par. 1648.
The term "day" or "days," when used in General Orders, No. 42, of 1901, has
reference to a day of twenty-four hours. Ibid., par. 1649.
A sentence of a summary court forfeited one month's pay in a case where, under
General Orders, No. 42, of 1901, the maximum legal forfeiture was ten dollars. Held,
that the sentence was void as to the forfeiture in excess of the limit, and advised that
the amount collected in excess of such limit be refunded to the soldier. Ibid.,
par. 1650.
It is now held by the War Department that when a seL^^c of confinement or
forfeiture exceeds the prescribed limit, the part within the limit is legal and may
be approved and carried into execution, (a) Ibid., par. 1651.
a See paragraph 2, Circ. 12, A. G. O., 1892.
1067
1068
MILITARY LAWS OF THE UNITED STATES.
SEC. 2. In case of apprehension—
(a) When at the time of desertion the deserter shall not have been
more than six months in the service, eighteen months.
(b) When he shall have been more than six months in the service,
two and one-half years.
SEC. 3. The foregoing limitations are subject to modifications under
the following conditions:
(a) The punishment of a deserter may be increased by one year of
confinement at hard labor in consideration of each previous conviction
of desertion.
(b) The punishment for desertion when joined in by two or more
soldiers in the execution of a conspiracy, or for desertion in the
presence of an outbreak of Indians or of any unlawful assemblage
which the troops may be opposing, shall not exceed dishonorable dis-
charge, forfeiture of all pay and allowances, and confinement at hard
labor for five years.
ARTICLE II.
Except as herein otherwise indicated, punishments shall not exceed
the limits prescribed in the following table:
Offenses.
Limits of punishment.
UNDER I?TH ARTICLE OP WAR.
Selling horse or arms, or both.
Selling accouterments
Selling clothing
Losing or spoiling horse or arms
through neglect.
Losing or spoiling accouterments or
clothing through neglect.
UNDER 20TH ARTICLE OF WAR.
Behaving himself with disrespect to
his commanding officer.
UNDER 24TH ARTICLE OP WAR.
Refusal to obey or using violence to
officer or noncommissioned officer
while quelling quarrels or disorders.
UNDER 32D ARTICLE OF WAR.
Absence without leave (a)—
One hour or less
For more than one to six hours,
inclusive.
For more than six to twelve
hours, inclusive.
For more than twelve to twenty-
four hours, incisive.
Dishonorable discharge, forfeiture of all pay and allowances,
and confinement at hard labor for three years.
Four months' confinement at hard labor and forfeiture of $10
per month for the same period ; for noncommissioned officer,
reduction in addition thereto.
Two months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned officer,
reduction in addition thereto.
Four months' confinement at hard labor and forfeiture of $10
per month for the same period ; for noncommissioned officer,
reduction in addition thereto.
Twenty days' confinement at hard labor and forfeiture of $6;
for noncommissioned officer, reduction in addition thereto.
Six months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned officer,
reduction in addition thereto.
Dishonorable discharge, with forfeiture of all pay and allow-
ances, and confinement at hard labor for two years.
Forfeiture of $1; corporal, $2; sergeant, $3; first sergeant or
noncommissioned officer of higher grade, $4.
Forfeiture of $2; corporal, $3; sergeant, $4; first sergeant or
noncommissioned officer of higher grade, $5.
Forfeiture of $3; corporal, $4; sergeant, $6; first sergeant or
noncommissioned officer of higher grade, $7.
Forfeiture of $5; corporal, $6; sergeant, $7; first sergeant or
noncommissioned officer of higher grade, $10.
a Upon trial for desertion and conviction of absence without leave only, the court may, in addition
to the limit prescribed for such absence, award a stoppage of the amount paid for apprehension and
for transportation of himself and guard.
MILITARY LAWS OF THE UNITED STATES.
1069
Offenses.
Limits of punishment.
UNDER 32D ARTICLE OF WAR/— Cont'd.
Absence without leave (a) —
For more than twenty-four to
forty-eight hours, inclusive.
For more than two to ten days,
inclusive.
For more than ten to thirty days,
inclusive.
For more than thirty to ninety
days, inclusive.
For more than ninety days.
UNDER 33D ARTICLE OF WAR.
Failure to repair at the time fixed, to
the place appointed, etc. —
For reveille or retreat roll call and
11 p. m. inspection.
For assembly of guard detail
For guard mounting (by musician
detailed for guard) .
For guard mounting (by musician
not detailed for guard).
For assembly of fatigue detail
For dress parade
For inspection and muster, weekly
or monthly inspection.
For target practice
For drill
F6r stable duty
For athletic exercises
UNDER 38TH ARTICLE OF WAR.
Found drunk —
On guard . . .
On duty as head cook ,
On extra or special duty
At formation of company for drill
or on drill.
At target practice ,
At formation of company for dress
parade or on dress parade.
At reveille or retreat roll call .
At inspection and muster, weekly
or monthly inspection.
At inspection of company guard
detail or at guard mounting.
At stable duty
On fatigue
UNDER 40TH ARTICLE OF WAR.
Quitting guard
UNDER 51sT ARTICLE OF WAR.
Persuading soldiers to desert
UNDER 60TH ARTICLE OF WAR...
UNDER 62D ARTICLE OF WAR.
Forfeiture of $6 and five days' confinement at hard labor. For
corporal, forfeiture of 88; sergeant, $10; first-sergeant or non-
commissioned officerof higher grade, 812; or, for all noncom-
missioned officers, reduction.
Forfeiture of $10 and ten days' confinement at hard labor; for
noncommissioned officer, reduction in addition thereto.
Forfeiture of $30 and one month's confinement at hard labor;
for noncommissioned officer, reduction in addition thereto.
Three months' confinement at hard labor and forfeiture of
$10 per month for same period; for noncommissioned officer,
reduction in addition thereto.
Dishonorable discharge and forfeiture of all pay and allow-
ances and six months' confinement at hard labor.
Forfeiture of $1; corporal, $2; sergeant, 83; first sergeant, $4.
Forfeiture of 85; corporal, 88; sergeant, 810.
Forfeiture of 82; corporal, 83; sergeant, $5.
Manslaughter
Assault with intent to kill
Burglary
Forgery .
Six months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned offi-
cer, reduction in addition thereto.
Forfeiture of 820.
Forfeiture of $7.2; for noncommissioned officer, reduction
and forfeiture of $20.
Six months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned officer,
reduction in addition thereto.
Dishonorable discharge, forfeiture of all pay and allowances,
and one year's confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and four years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and ten years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and ten years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and five years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and four years' confinement at hard labor.
a Upon trial for desertion and conviction of absence without leave only, the court may, in addition
to the limit prescribed for such absence, award a stoppage of the amount paid for apprehension and
for transportation of himself and guard.
1070
MILITARY LAWS OF THE UNITED STATES.
Offenses.
Limits of punishment.
UNDER 62» ARTICLE OF WAR—
Continued.
Perjury
False swearing
Robbery
Larceny or embezzlement of prop-
erty(a)—
Of the value of more than $100. . .
Of the value of $100 or less, and
more than $50.
Of the value of $50 or less, and
more than $20.
Of the value of $20 or less
Fraudulent enlistment, procured by
false representation or concealment
of a fact in regard to a prior enlist-
ment or discharge, or in regard to
conviction of a civil or military
crime.
Fraudulent enlistment, other cases of . .
Disobedience of orders, involving will-
ful defiance of the authority of a
noncommissioned officer in the exe-
cution of his office.
Using threatening or insulting lan-
guage or behaving in an insubordi-
nate manner to a noncommissioned
officer while in the execution of his
office.
Absence from fatigue duty
Absence from extra or special duty...
Absence from duty as company, gen-
eral mess, or hospital head cook.
Introducing Iiqu9r into post, camp,
or quarters in violation of standing
orders.
Drunkenness at post or in quarters . . .
Drunkenness and disorderly conduct,
causing the offender's arrest and
conviction by civil authorities at a
place within ten miles of his sta-
tion.
Noisy or disorderly conduct in quar-
ters.
Drunk and disorderly in post or quar-
ters.
Abuse by noncommissioned officer of
his authority over an inferior.
Noncommissioned officer encourag-
ing gambling.
Noncommissioned officer making
false report.
Sentinel allowing a prisoner under his
charge to escape through neglect.
Sentinel willfully suffering prisoner
under his charge to escape.
Sentinel allowing a prisoner under his
charge to obtain liquor.
Sentinel or member of guard drink-
ing liquor with prisoners.
Disrespect or affront to a sentinel
Resisting or disobeying sentinel in
lawful execution of his duty.
Lewd or indecent exposure of person. .
Commiting nuisance in or about quar-
ters.
Breach of arrest in quarters.
Dishonorable discharge, forfeiture of all pay and allowances,
and four years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and two years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and six years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances
and four years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and three years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and two years' confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and one year's confinement at hard labor.
Dishonorable discharge, forfeiture of all pay and allowances,
and confinement at hard labor for one year.
Dishonorable discharge, forfeiture of all pay and allowances,
and confinement at hard labor for six months.
Six months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned officer,
reduction in addition thereto.
One months' confinement at hard labor and forfeiture of $10;
for noncommissioned officer, reduction in addition thereto.
Forfeiture of $4; corporal, $5; sergeant, $6.
Forfeiture of $4; corporal, $5; sergeant, $6.
Forfeiture of $10.
Forfeiture of $3; for noncommissioned officer, reduction and
forfeiture of $5.
Forfeiture of $3; for noncommissioned officer, reduction and
forfeiture of $5.
Forfeiture of $10 and seven days' confinement at hard labor;
for noncommissioned officer, reduction and forfeiture of $12.
Forfeiture of $4; corporal, $7; sergeant, $10.
Forfeiture of $7; for noncommissioned officer, reduction and
forfeiture of $10.
Reduction, three months' confinement at hard labor, and for-
feiture of $10 per month for the same period.
Reduction and forfeiture of $5.
Reduction, forfeiture of $8, and ten days' confinement at hard
labor.
Six months' confinement at hard labor and forfeiture of $10
per month for the same period.
Dishonorable discharge, forfeiture of all pay and allowances,
and one years' confinement at hard labor.
Two months' confinement at hard labor and forfeiture of $10
per month for the same period.
Two months' confinement at hard labor and forfeiture of $10
per month for the same period.
Two months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned offi-
cer, reduction in addition thereto.
Six months' confinement at hard labor and forfeiture of $10
per month for the same period; for noncommissioned offi-
cer, reduction in addition thereto.
) Three months' confinement at hard labor and forfeiture of $10
}• per month for the same period; for noncommissioned offi-
J cer, reduction in addition thereto.
One months' confinement at hard labor and forfeiture of $10;
for noncommissioned officer, reduction in addition thereto.
a In specifications to charges of larceny or embezzlement the value of the property shall be stated.
MILITAEY LAWS OF THE UNITED STATES. 1071
ARTICLE III.
The introduction and use of evidence of previous convictions is sub-
ject to the following regulations:
1. Such evidence shall be limited to previous convictions by courts-
martial of an offense or offenses within one year preceding the arraign-
ment and during the current enlistment. These convictions must be
proved by the records of previous trials and convictions, or by duly
authenticated copies of such records, or by duly authenticated copies
of the orders promulgating such trials and convictions. Charges for-
warded to the authority competent to order a general court-martial,
or submitted to a summary, garrison, or regimental court-martial,
must be accompanied by the proper evidence of previous convictions.
2. Whenever a soldier is convicted of an offense for which a dis-
cretionary punishment is authorized, the court will receive evidence
of previous convictions, if there be any. General, regimental, and
garrison courts-martial will, after a finding of guilty, be opened for
the purpose of ascertaining whether there is such evidence and, if so,
of receiving it.
3. Previous convictions in connection with inferior court offenses. —
When a soldier is convicted of an offense the punishment for which
under Article II of this order or the custom of the service does not
exceed one month's confinement at hard labor and forfeiture of one
month's pay, the punishment so authorized may, upon proof of four
or less previous convictions within the prescribed period, be increased
one-half for each of such previous convictions; provided that upon
proof of five or more such previous convictions, the limit of punish-
ment shall be dishonorable discharge, forfeiture of all pay and allow-
ances, and confinement at hard labor for three months.
4. Previous convictions in connection with general court-martial
offenses. — When the conviction is for an offense punishable under
Article II of this order or the custom of the service with a greater pun-
ishment than one month's confinement at hard labor and forfeiture of
one month's pay, such punishment, if it includes dishonorable dis-
charge, shall not be increased by reason of previous convictions, but
evidence thereof, whatever their number within the prescribed period,
will be submitted to the court to aid it in determining upon the proper
measure of punishment, subject to the limit already authorized.
If the authorized punishment under Article II of this order or the
custom of the service exceeds one month's confinement at hard labor
arid forfeiture of one month's pay and does not include dishonorable
discharge such punishment shall not be increased on account of pre-
vious convictions if less than five are considered, but if there be five
or more, the court may adjudge dishonorable discharge and forfeiture
of all pay and allowances with the authorized confinement, and when
1072 MILITARY LAWS OF THE UNITED STATES.
this confinement is less than three months it may be increased to three
months.1
5. On a conviction of desertion evidence of convictions of previous
desertions may also be introduced, irrespective of the period which
may have elapsed since such conviction or convictions.
6. When a noncommissioned officer is convicted of an offense not
punishable with reduction, he may, upon proof of one previous con-
viction within the prescribed period, be sentenced to reduction in
addition to the punishment already authorized.
7. First-class privates may be reduced to second-class privates in all
cases where for like offenses on the part of noncommissioned officers
their reduction in grade is now authorized.
ARTICLE IV.
When a soldier shall, on one arraignment, be convicted of two or
more offenses, none of which is punishable under Article II of this
order or the custom of the service with dishonorable discharge, but
the aggregate term of confinement for which may exceed six months,
dishonorable discharge with forfeiture of pay and allowances may be
awarded in addition to the authorized confinement.2
ARTICLE V.
If, in any case where the limit of punishment is dishonorable dis-
charge, forfeiture of all pay and allowances, and confinement at hard
labor for a stated number of months, dishonorable discharge be not
adjudged, the limit of forfeiture shall be all pay due and to become
due during the prescribed limit of confinement.
1 By the third subdivision of Article III of the Executive Order of March 30, 1898
(G. 0. 16, A. G. 0., 1898), it is provided that in consideration of previous convic-
tions the limit of punishment shall be " dishonorable discharge, forfeiture of all pay
and allowances, and confinement at hard labor for three months. ' ' Such a sentence
means, so far as the forfeiture is concerned, forfeiture of pay and allowances due at
the date of the discharge. A court-martial when it has the power to award this sen-
tence may award a lesser one, but in doing so can not award confinement and forfei-
ture greater in amount than confinement for three months and forfeiture of pay and
allowances due, or its equivalent under the rule of substitution authorized in the
order. (a) Dig. Opin. J. A. G., par. 1653.
2The term "authorized confinement" as used in Article IV of General Order No.
16 of 1895 (now Article IV, General Order No. 16 of 1898), is not limited to the maxi-
mum authorized. Confinement for a period less than the maximum is also author-
ized confinement. The article means that when the maximum term may be more
than six months, dishonorable discharge with forfeiture of pay and allowances may
be awarded with whatever confinement, within the prescribed limit, the court may
adjudge. Held also that such "authorized confinement" is limited to the specific
confinement authorized by Article II, or if not provided for therein, by the custom
of the service; that is to say, such confinement may not be increased by substitution
of confinement for forfeiture, or on account of previous convictions, the same not
being provided for by the terms of Article IV. Ibid., par. 1652.
(a) But see Article V, post.
MILITARY LAWS OF THE UNITED STATES. 1073
ARTICLE VI.
This order prescribes the maximum limit of punishment for the
offenses named, and this limit is intended for those cases in which the
severest punishment should be awarded. In other cases the punish-
ment should be graded down according to the extenuating circum-
stances. Offenses not herein provided for remain punishable as
authorized by the Articles of War and the custom of the service.
ARTICLE VII.
Summary courts are subject to the restrictions named in the Eighty-
third Article of War. Soldiers against whom charges may be pre-
ferred for trial by summary court shall not be confined in the guard-
house, but shall be placed in arrest in quarters, before and during
trial and while awaiting sentence, except when in particular cases
restraint may be necessary.
ARTICLE VIII.
Substitutions for punishment named in Article II of this order are
authorized at the discretion of the courts at the following rates:
Two days' confinement at hard labor for one dollar forfeiture; or the
reverse; one day's solitary confinement on bread and water diet for
two days' confinement at hard labor or for one dollar forfeiture; pro-
vided that a noncommissioned officer not sentenced to reduction shall
not be subject to confinement; and provided that solitary confinement
shall not exceed fourteen days at one time, nor be repeated until four-
teen days have elapsed, and shall not exceed eighty-four days in one
year.1
ARTICLE IX.
Noncommissioned officers above the rank of corporal shall not, if
they object thereto, be brought to trial before regimental, garrison,
or summary courts-martial without the authority of the officer compe-
tent to order their trial by general court-martial; nor shall sergeants
of the post noncommissioned staff or hospital stewards be reduced, but
they may be dishonorably discharged whenever reduction is included
in the limit of punishment.
WILLIAM McKiNLEY.
By command of Lieutenant-General Miles:
H. C. CORBIN,
Adjutant- General, Major- General U. 8. Army.
1 The order prescribing maximum punishments also provides for certain substitu-
tions of punishment. The purpose of these provisions is not only to determine the
measure, but also the kind of punishment which should be considered authorized so
far as the offenses specified in the order are concerned. Thus where the prescribed
limit is forfeiture and confinement a reprimand in lieu thereof can not legally be
adjudged. Dig. Opin. J. A. G., par. 1654.
22924—08 68
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD.
GENERAL ORDERS, ) WAR DEPARTMENT,
ADJUTANT-GENERAL'S OFFICE,
No. 100. ) Washington, April 24, 1863.
The following ' ' Instructions for the government of armies of the
United States in the field," prepared by Francis Lieber, LL. D., and
revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is
president, having been approved by the President of the United States,
he commands that they be published for the information of all concerned.
By order of the Secretary of War:
E. D. TOWNSEND,
Assistant Adjutant- General.
SECTION I.
MARTIAL LAW — MILITARY JURISDICTION — MILITARY NECESSITY-
RETALIATION.
1. A place, district, or county occupied by an enemy stands, in con-
sequence of the occupation, under the martial law of the invading or
occupying army, whether any proclamation declaring martial law or
any public warning to the inhabitants has been issued or not. Martial
law is the immediate and direct effect and consequence of occupation
or conquest.
The presence of a hostile army proclaims its martial law.
2. Martial law does not cease during the hostile occupation, except
by special proclamation ordered by the commander-in-chief, or by
special mention in the treaty of peace concluding the war, when the
occupation of a place or territory continues beyond the conclusion of
peace as one of the conditions of the same.
3. Martial law in a hostile country consists in the suspension, by
the occupying military authority, of the criminal and civil law, and
of the domestic administration and government in the occupied place
or territory, and in the substitution of military rule and force for the
same, as well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration
1074
MILITARY LAWS OF THE UNITED STATES. 1075
of all civil and penal law shall continue either wholly or in part, as in
times of peace, unless otherwise ordered by the militarj^ authority.
4. Martial law is simple military authority exercised in accordance
with the laws and usages of war. Militarf oppression is not martial
law; it is the abuse of the power which the law confers. As martial
law is executed by military force, it is incumbent upon those who
administer it to be strictly guided by the principles of justice, honor,
and humanity — virtues adorning a soldier even more than other men,
for the very reason that he possesses the power of his arms against
the unarmed.
5. Martial law should be less stringent in places and countries fully
occupied and fairly conquered. Much greater severity may be exer-
cised in places or regions where actual hostilities exist, or are expected
and must be prepared for. Its most complete sway is allowed — even
in the commander's own country — when face to face with the enemy,
because of the absolute necessities of the case, and of the paramount
duty to defend the country against invasion.
To save the country is paramount to all other considerations.
6. All civil and penal law shall continue to take its usual course in
the enemy's places and territories under martial law, unless interrupted
or stopped by order of the occupying military power; but all the func-
tions of the hostile government — legislative, executive, or administra-
tive— whether of a general, provincial, or local character, cease under
martial law, or continue only with the sanction, or, if deemed necessary,
the participation of the occupier or invader.
7. Martial law extends to property and to persons, whether they are
subjects of the enemy or aliens to that government.
8. Consuls, among Americans and European nations, are not diplo-
matic agents. Nevertheless, their offices and persons will be subjected
to martial law in cases of urgent necessity only; their property and
business are not exempted. Any delinquency they commit against the
established military rule may be punished as in the case of any other
inhabitant, and such punishment furnishes no reasonable ground for
international complaint.
9. The functions of ambassadors, ministers, or other diplomatic
agents accredited by neutral powers to the hostile government cease,
so far as regards the displaced government; but the conquering or
occupying power usually recognizes them as temporarily accredited
to itself.
10. Martial law affects chiefly the police and collection of public
revenue and taxes, whether imposed by the expelled government or
by the invader, and refers mainly to the support and efficiency of the
army, its safety,, and the safety of its operations.
11. The law of war does not only disclaim all cruelty and bad faith
concerning engagements concluded with the enemy during the war, but
1076 MILITARY LAWS OF THE UNITED STATES.
also the breaking of stipulations solemnly contracted by the belligerents
in time of peace, and avowedly intended to remain in force in the case
of war between the contracting powers.
It disclaims all extortions and other transactions for individual gain;
all acts of private revenge, or connivance at such acts.
Offenses to the contrary shall be severely punished, and especially
so if committed by officers.
12. Whenever feasible, martial law is carried out in cases of indi-
vidual offenders by military courts; but sentences of death shall be
executed only with the approval of the Chief Executive, provided the
urgency of the case does not require a speedier execution, and then
only with the approval of the chief commander.
13. Military jurisdiction is of two kinds: First, that which is con-
ferred and defined by statute; second, that which is derived from Jhe
common law of war. Military offenses under the statute law must be
tried in the manner therein directed; but military offenses which do
not come within the statute must be tried and punished under the
common law of war. The character of the courts which exercise these
jurisdictions depends upon the local laws of each particular country.
In the armies of the United States the first is exercised by courts-
martial, while cases which do not come within the Rules and Articles
of War, or the jurisdiction conferred by statute or courts-martial, are
tried by military commissions.
14. Military necessity, as understood by modern civilized nations,
consists in the necessity of those measures which are indispensable for
securing the ends of the war, and which are lawful according to the
modern law and usages of war.
15. Military necessity admits of all direct destruction of life or limb
of armed enemies, and of other persons whose destruction is incident-
ally unavoidable in the armed contests of the war; it allows of the cap-
turing of every armed enemy and every enemy of importance to the
hostile government or of peculiar danger to the captor; it allows of
all destruction of property and obstruction of the ways and channels
of traffic, travel, or communication, and of all withholding of suste-
nance or means of life from the enemy ; of the appropriation of what-
ever an enemy's country affords necessary for the subsistence and safety
of the army, and of such deception as does not involve the breaking
of good faith, either positively pledged, regarding agreements entered
into during the war, or supposed by the modern law of war to exist.
Men who take up arms against one another in public war do not cease
on this account to be moral beings, responsible to one another and
to God.
16. Military necessity does not admit of cruelty — that is, the inflic-
tion of suffering for the sake of suffering or for revenge, nor of
maiming or wounding except in fight, nor of torture to extort con-
MILITARY LAWS OF THE UNITED STATES. 1077
fessions. It does not admit of the use of poison in any way, nor of the
wanton devastation of a district. It admits of deception, but disclaims
acts of perfidy; and, in general, military necessity does not include
any act of hostility which makes the return to peace unnecessarily
difficult.
17. War is not carried on by arms alone. It is lawful to starve the
hostile belligerent, armed or unarmed, so that it leads to the speedier
subjection of the enemy.
18. When a commander of a besieged place expels the noncombat-
ants, in order to lessen the number of those who consume his stock of
provisions, it is lawful, though an extreme measure, to drive them
back, so as to hasten on the surrender.
19. Commanders, whenever admissible, inform the enemy of their
intention to bombard a place, so that the noncombatants, and especially
the women and children, may be removed before the bombardment
commences. But it is no infraction of the common law of war to omit
thus to inform the enemy. Surprise may be a necessity.
20. Public war is a state of armed hostility between sovereign nations
or governments. It is a law and requisite of civilized existence that
men live in political, continuous societies, forming organized units,
called states or nations, whose constituents bear, enjoy, and suffer,
advance and retrograde together in peace and in war.
21. The citizen or native of a hostile country is thus an enemy, as
one of the constituents of the hostile state or nation, and as such is
subjected to the hardships of the war.
22. Nevertheless, as civilization has advanced during the last cen-
turies, so has likewise steadily advanced, especially in war on land, the
distinction between the private individual belonging to a hostile coun-
try and the hostile country itself, with its men in arms. The principle
has been more and more acknowledged that the unarmed citizen is to
be spared in person, property, and honor as much as the exigencies of
war will admit.
23. Private citizens are no longer murdered, enslaved, or carried off
to distant parts, and the inoffensive individual is as little disturbed
in his private relations as the commander of the hostile troops can
afford to grant in the overruling demands of a vigorous war.
24. The almost universal rule in remote times was, and continues to
be with barbarous armies, that the private individual of the hostile
country is destined to suffer every privation of liberty and protection
and every disruption of family ties. Protection was, and still is with
uncivilized people, the exception.
25. In modern regular wars of the Europeans, and their descend-
ants in other portions of the globe, protection of the inoffensive citi-
zen of the hostile country is the rule; privation and disturbance of
private relations are the exceptions.
1078 MILITARY LAWS OF THE UNITED STATES.
26. Commanding generals may cause the magistrate and civil offi-
cers of the hostile country to take the oath of temporary allegiance or
an oath of fidelity to their own victorious government or rulers, and
they may expel every one who declines to do so. But whether they
do so or not, the people and their civil officers owe strict obedience to
them as long as they hold sway over the district or country, at the
peril of their lives.
27. The law of war can no more wholly dispense with retaliation
than can the law of nations, of which it is a branch. Yet civilized
nations acknowledge retaliation as the sternest feature of war. A
reckless enenry often leaves to his opponent no other means of secur-
ing himself against the repetition of barbarous outrage.
28. Retaliation will, therefore, never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and,
moreover, cautiously and unavoidably; that is to say, retaliation shall
only be resorted to after careful inquiry into the real occurrence and
the character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents further
and further from the mitigating rules of regular war, and by rapid
steps leads them nearer to the internecine wars of savages.
29. Modern times are distinguished from earlier ages by the exist-
ence, at one and the same time, of many nations and great governments
related to one another in close intercourse.
Peace is their normal condition; war is the exception. The ultimate
object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity.
Sharp wars are brief.
30. Ever since the formation and coexistence of modern nations, and
ever since wars have become great national wars, war has come to be
acknowledged not to be its own end, but the means to obtain great
ends of state, or to consist in defense against wrong; and no conven-
tional restrictions of the modes adopted to injure the enemy is any
longer admitted; but the law of war imposes many limitations and
restrictions on principles of justice, faith, and honor.
SECTION 11.
PUBLIC AND PRIVATE PROPERTY OF THE ENEMY PROTECTION OF PER-
SONS, AND ESPECIALLY OF WOMEN; OF RELIGION, THE ARTS, AND
SCIENCES — PUNISHMENT OF CRIME AGAINST THE INHABITANTS OF
HOSTILE COUNTRIES.
31. A victorious army appropriates all public money, seizes all
public movable property until further direction by its government,
and sequesters for its own benefit or that of its government all the
revenues of real property belonging to the hostile government or
MILITARY LAWS OF THE UNITED STATES. 1079
nation. The title to such real property remains in abeyance during
military occupation and until the conquest is made complete.
32. A victorious army, by the martial power inherent in the same,
may suspend, change, or abolish, as far as the marshal power extends,
the relations which arise from the services due, according to the exist-
ing laws of the invaded county, from one citizen, subject, or native
of the same to another.
The commander of the army must leave it to the ultimate treaty of
peace to settle the permanency of this change.
33. It is no longer considered lawful — on the contrary, it is held to
be a serious breach of the law of war— to force the subjects of the
enemy into the service of the victorious government, except the latter
should proclaim, after a fair and complete conquest of the hostile
country or district, that it is resolved to keep the country, district, or
place permanently as its own and make it a portion of its own country.
34. As a general rule the property belonging to churches, to hos-
pitals, or other establishments of an exclusively charitable character,
to establishments of education, or foundations for the promotion of
knowledge, whether public schools, universities, academies of learning,
or observatories, museums of the fine arts, or of a scientific character —
such property is not to be considered public property in the sense of
paragraph 31, but it may be taxed or used when the public service may
require it.
35. Classical works of art, libraries, scientific collections, or precious
instruments, such as astronomical telescopes, as well as hospitals, must
be secured against all avoidable injury, even when thejr are contained
in fortified places whilst besieged or bombarded.
36. If such works of art, libraries, collections, or instruments belong-
ing to a hostile nation or government can be removed without injury,
the ruler of the conquering state or nation may order them to be seized
and removed for the benefit of the said nation. The ultimate owner-
ship is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given awa}r if captured by the armies
of the United States, nor shall they ever be privately appropriated or
wantonly destroyed or injured.
37. The United States acknowledge and protect, in hostile countries
occupied by them, religion and morality, strictly private property, the
persons of the inhabitants, especially those of women, and the sacred-
ness of domestic relations. Offenses to the contrary shall be rigorously
punished.
This rule does not interfere with the right of the victorious invader
to tax the people or their property, to levy forced loans, to billet sol-
diers, or to appropriate property, especially houses, lands, boats or
ships, and churches, for temporary and military uses.
38. Private property, unless forfeited by crimes or by offenses of
1080 MILITARY LAWS OF THE UNITED STATES.
the owner, can be seized only by way of military necessity for the
support or other benefit of the Army or of the United States."
If the owner has not fled, the commanding officer will cause receipts
to be given, which may serve the spoliated owner to obtain indemnity.
39. The salaries of civil officers of the hostile government who
remain in the invaded territory, and continue the work of their office,
and can continue it according to the circumstances arising out of the
war — such as judges, administrative or police officers, officers of city
or communal governments — are paid from the public revenue of the
invaded territory until the military government has reason wholly or
partially to discontinue it. Salaries or incomes connected with purely
honorary titles are always stopped.
40. There exists no law or body of authoritative rules of action
between hostile armies, except that branch of the law of nature and
nations which is called the law and usages of war on land.
41. All municipal law of the ground on which the armies stand, or of
the countries to which they belong, is silent and of no effect between
armies in the field.
42. Slavery, complicating and confounding the ideas of property
(that is, of a thing] and of personality (that is, of humanity], exists accord-
ing to municipal or local law only. The law of nature and nations has
never acknowledged it. The digest of the Roman law enacts the early
dictum of a pagan jurist, that, "so far as the law of nature is con-
cerned, all men are equal. " Fugitives escaping from a country in which
they were slaves, villains, or serfs, into another country, have, for cen-
turies past, been held free and acknowledged free by judicial decisions
of European countries, even though the municipal law of the country
in which the slave had taken refuge acknowledged slavery within its
own dominions.
43. Therefore, in a war between the United States and a belligerent
which admits of slavery, if a person held in bondage by that belligerent
be captured by or come as a fugitive under the protection of the mili-
tary forces of the United States, such person is immediately entitled
to the rights and privileges of a freeman. To return such person into
slavery would amount to enslaving a free person, and neither the United
States nor any officer under their authority can enslave any human
being. Moreover, a person so made free by the law of war is under the
shield of the law of nations, and the former owner or State can have,
by the law of postliminy, no belligerent lien or claim of service.
44. All wanton violence committed against persons in the invaded
country, all destruction of property not commanded by the authorized
officer, all robbery or pillage or sacking, even after taking a place by
main force, all rape, wounding, maiming, or killing of such inhabitants,
are prohibited under the penalty of death, or such other severe punish-
ment as may seem adequate for the gravity of the offense.
MILITARY LAWS OF THE UNITED STATES. 1081
A soldier, officer or private, in the act of committing* such violence,
and disobeying a superior ordering him to abstain from it, may be
lawf ully killed on the spot by such superior.
45. All captures and booty belong, according to the modern law of
war, primarily to the government of the captor.
Prize money, whether on sea or land, can now only be claimed under
local law.
46. Neither officers nor soldiers are allowed to make use of their
position or power in the hostile country for private gain, not even for
commercial transactions otherwise legitimate. Offenses to the con-
trary committed by commissioned officers will be punished with cash-
iering or such other punishment as the nature of the offense may
require; if by soldiers, they shall be punished according to the nature
of the offense.
47. Crimes punishable by all penal codes, such as arson, murder,
maiming, assaults, highway robbery, theft, burglary, fraud, forgery,
and rape, if committed by an American soldier in a hostile country
against its inhabitants, are not only punishable as at home, but in all
cases in which death is not inflicted the severer punishment shall be
preferred.
SECTION III.
DESERTERS PRISONERS OF WAR — HOSTAGES — BOOTY ON THE BATTLE-
FIELD.
48. Deserters from the American Army, having entered the service
of the enemy, suffer death if they fall again into the hands of the
United States, whether by capture or being delivered up to the Ameri-
can Army; and if a deserter from the enemy, having taken service in
the Army of the United States, is captured by the enemy, and pun-
ished by them with death or otherwise, it is not a breach against the
law and usages of war requiring redress or retaliation.
49. A prisoner of war is a public enemy armed or attached to the
hostile army for active aid, who has fallen into the hands of the captor,
either fighting or wounded, on the field or in the hospital, by indi-
vidual surrender or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the
rising en masse of the hostile country; all those who are attached to
the army for its efficiency and promote directly the object of the war,
except such as are hereinafter provided for; all disabled men or officers
on the field or elsewhere, if captured; all enemies who have thrown
away their arms and ask for quarter, are prisoners of war, and as such
exposed to the inconveniences as well as entitled to the privileges of a
prisoner of war.
50. Moreover, citizens who accompany an army for whatever pur
1082 MILITARY LAWS OF THE UNITED STATES.
pose, such as sutlers, editors, or reporters of journals, or contractors,
if captured, may be made prisoners of war, and be detained as such.
The monarch and members of the hostile reigning family, male or
female, the chief , and chief officers of the hostile government, its diplo-
matic agents, and all persons who are of particular and singular use
and benefit to the hostile army or its government, are, if_ captured on
belligerent ground, and if unprovided with a safe conduct granted by
the captor's government, prisoners of war.
51. If the people of that portion of an invaded country which is not
yet occupied by the enemy, or of the whole country, at the approach
of a hostile army, rise, under a duly authorized levy, en masse to resist
the invader, they are now treated as public enemies, and, if captured,
are prisoners of war.
52. No belligerent has the right to declare that he will treat every
captured man in arms of a levy en masse as a brigand or bandit.
If, however, the people of a country, or &i\y portion of the same,
already occupied by an army rise against it, they are violators of the
laws of war, and are not entitled to their protection.
53. The enemy's chaplains, officers of the medical staff, apothecaries,
hospital nurses, and servants, if they fall into the hands of the Ameri-
can Army, are not prisoners of war unless the commander has reasons
to retain them. In this latter case, or if, at their own desire, they are
allowed to remain with their captured companions, they are treated as
prisoners of war, and may be exchanged if the commander sees fit.
54. A hostage is a person accepted as a pledge for the fulfillment of
an agreement concluded between belligerents during the war, or in
consequence of a war. Hostages are rare in the present age.
55. If a hostage is accepted, he is treated like a prisoner of war,
according to rank and condition, as circumstances may admit.
56. A prisoner of war is subject to no punishment for being a public
enemy, nor is any revenge wreaked upon him by the intentional inflic-
tion of any suffering, or disgrace, by cruel imprisonment, want of
food, by mutilation, death, or an}^ other barbarity.
57. So soon as a man is armed by a sovereign government and takes
the soldier's oath of fidelity he is a belligerent; his killing, wounding,
or other warlike acts are no individual crimes or offenses. No bel-
ligerent has a right to declare that enemies of a certain class, color, or
condition, when properly organized as solders, will not be treated by
him as public enemies.
58. The law of nations knows of no distinction of color, and if an
enem}^ of the United States should enslave and sell any captured per-
sons of their Army, it would be a case for the severest retaliation, if
not redressed upon complaint.
The United States can not retaliate by enslavement; therefore death
must be the retaliation for this crime against the law of nations.
MILITAKY LAWS OF THE UNITED STATES. 1083
59. A prisoner of war remains answerable for his crimes committed
against the captor's army or people, committed before he was captured,
and for which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory measures.
60. It is against the usage of modern war to resolve, in hatred and
revenge, to give no quarter. No body of troops has the right to declare
that it will not give, and therefore will not expect, quarter; but a com-
mander is permitted to direct his troops to give no quarter, in great
straits, when his own salvation makes it impossible to cumber himself
with prisoners.
61. Troops that give no quarter have no right to kill enemies already
disabled on the ground or prisoners captured by other troops.
62. All troops of the enemy known or discovered to give no quarter
in general, or to any portion of the army, receive none.
63. Troops who fight in the uniform of their enemies, without any
plain, striking, and uniform mark of distinction of their own, can
expect no quarter.
64. If American troops capture a train containing uniforms of the
enemy, and the commander considers it advisable to distribute them
for use among his men, some striking mark or sign must be adopted to
distinguish the American soldier from the enemy.
65. The use of the enemy's national standard, flag, or other emblem
of nationality for the purpose of deceiving the enemy in battle is an
act of perfidy by which they lose all claim to the protection of the laws
of war.
66. Quarter having been given to an enemy by American troops under
a misapprehension of his true character, he may, nevertheless, be
ordered to suffer death if within three days after the battle it be
discovered that he belongs to a corps which gives no quarter.
67. The law of nations allows every sovereign government to make
war upon another sovereign state, and therefore admits of no rules or
laws different from those of regular warfare regarding the treatment of
prisoners of war, although the}7 may belong to the army of a govern-
ment which the captor ma}r consider as a wanton and unjust assailant.
68. Modern wars are not internecine wars, in which the killing of the
enemy is the object. The destruction of the enemy in modern war,
and, indeed, modern war itself, are means to obtain that object of the
belligerent which lies bej^ond the war.
Unnecessary or revengeful destruction of life is not lawful.
69. Outposts, sentinels, or pickets are not to be fired upon, except to
drive them in or when a positive order, special or general, has been
issued to that effect.
70. The use of poison in any manner, be it to poison wells or food
or arms, is wholly excluded from modern warfare. He that uses it puts
himself out of the pale of the law and usages of war.
1084 MILITARY LAWS OF THE UNITED STATES.
71. Whoever intentionally inflicts additional wounds on an enemy
already wholly disabled or kills such an enemy, or who orders or en-
courages soldiers to do so, shall suffer death, if duly convicted, whether
he belongs to the Army of the United States or is an enemy captured
after having committed his misdeed.
72. Money and other valuables on the person of a prisoner, such as
watches or jewelry, as well as extra clothing, are regarded by the
American Army as the private property of the prisoner, and the appro-
priation of such valuables or money is considered dishonorable, and is
prohibited.
Nevertheless, if large sums are found upon the persons of prisoners
or in their possession they shall be taken from them, and the surplus,
after providing for their own support, appropriated for the use of the
Army, under the direction of the commander, unless otherwise ordered
by the Government. Nor can prisoners claim as private property
large sums found and captured in their train, although they have been
placed in the private luggage of the prisoners.
73. All officers, when captured, must surrender their side arms to
the captor. They may be restored to the prisoner in marked cases,
by the commander, to signalize admiration of his distinguished bravery
or approbation of his humane treatment of prisoners before his cap-
ture. The captured officer to whom they may be restored can not
wear them during captivity.
74. A prisoner of war, being a public enemy, is the prisoner of the
government and not of the captor. No ransom can be paid by a
prisoner of war to his individual captor or to any officer in command.
The government alone releases captives, according to rules prescribed
by itself.
75. Prisoners of war .are subject to confinement or imprisonment,
such as may be deemed necessary on account of safety, but they are to
be subjected to no other intentional suffering or indignity. The con-
finement and mode of treating a prisoner ma}r be varied during his
captivity according to the demands of safety.
76. Prisoners of war shall be fed upon plain and wholesome food,
whenever practicable, and treated with humanity.
They may be required to work for the benefit of the captor's gov-
ernment, according to their rank and condition.
77. A prisoner of war who escapes may be shot or otherwise killed
in his flight, but neither death nor any other punishment shall be
inflicted upon him simply for his attempt to escape, which the law of
war does not consider a crime. Stricter means of security shall be
used after an unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a
united or general escape, the conspirators may be rigorously punished,
even with death; and capital punishment may also be inflicted upon
MILITARY LAWS OP THE UNITED STATES. 1085
prisoners of war discovered to have plotted rebellion against the
authorities of the captors, whether in union with fellow-prisoners or
other persons.
78. If prisoners of war, having given no pledge nor made any promise
on their honor, forcibly or otherwise escape, and are captured again in
battle, after having rejoined their own army, they shall not be punished
for their escape, but shall be treated simply as prisoners of war,
although they will be subjected to stricter confinement.
79. Every captured wounded enemy shall be medically treated, ac-
cording to the ability of the medical staff.
80. Honorable men, when captured, will abstain from giving to the
enemy- information concerning their own army, and the modern law of
war permits no longer the use of any violence against prisoners in order
to extort the desired information, or to punish them for having given
false information.
SECTION IV.
PARTISANS — ARMED ENEMIES NOT BELONGING TO THE HOSTILE ARMY —
SCOUTS ARMED PROWLERS— WAR REBELS.
81. Partisans are soldiers armed and wearing the uniform of their
army, but belonging to a corps which acts detached from the main body
for the purpose of making inroads into the territory occupied by the
enemy. If captured, they are entitled to all the privileges of the
prisoner of war.
82. Men, or squads of men, who commit hostilities, whether by fight-
ing or inroads for destruction or plunder, or by raids of any kind, with-
out commission, without being part and portion of the organized hos-
tile army, and without sharing continuously in the war, but who do so
with intermitting returns to their homes and avocations, or with the
occasional assumption of the semblance of peaceful pursuits, divesting
themselves of the character or appearance of soldiers — such men, or
squads of men, are not public enemies, and therefore, if captured, are
not entitled to the privileges of prisoners of war, but shall be treated
summarily as highway robbers or pirates.
83. Scouts or single soldiers, if disguised in the dress of the country,
or in the uniform of the army hostile to their own, employed in obtain-
ing information, if found within or lurking about the lines of the
captor, are treated as spies, and suffer death.
84. Armed prowlers, by whatever names they may be called, or per-
sons of the enemy's territory, who steal within the lines of the hostile
army for the purpose of robbing, killing, or of destroying bridges,
roads, or canals, or of robbing or destroying the mail, or of cutting
the telegraph wires, are not entitled to the privileges of the prisoner
of war.
1086 MILITARY LAWS OF THE UNITED STATES.
85. War rebels are persons within an occupied territory who rise in
arms against the occupying or conquering army, or against the author-
ities established by the same. If captured, they may suffer death,
whether they rise singly, in small or large bands, and whether called
upon to do so by their own, but expelled, government or not. They
are not prisoners of war; nor are they, if discovered and secured before
their conspiracy has matured to an actual rising, or to armed violence.
SECTION V.
SAFE CONDUCT — SPIES — WAR TEAITORS — CAPTURED MESSENGERS — ABUSE
OF THE FLAG OF TRUCE.
86. All intercourse between the territories occupied by belligerent
armies, whether by traffic, by letter, by travel, or in any other way,
ceases. This is the general rule, to be observed without special
proclamation.
Exceptions to this rule> whether by safe conduct, or permission to
trade on a small or large scale, or by exchanging mails, or by travel
from one territory into the other, can take place only according to
agreement approved by the government or by the highest military
authority.
Contraventions of this rule are highly punishable.
87. Ambassadors, and all other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe conducts through the terri-
tories occupied by the belligerents, unless there are military reasons to
the contrary, and unless they may reach the place of their destination
conveniently by another route. It implies no international affront if
the safe conduct is declined. Such passes are usually given by the
supreme authority of the State, and not by subordinate officers.
88. A spy is a person who secretly, in disguise or under false pre-
tense, seeks information with the intention of communicating it to the
enemy. ,
The spy is punishable with death by hanging by the neck, whether
or not he succeed in obtaining the information or in conveying it to
the enemy.
89. If a citizen of the United States obtains information in a legiti-
mate manner, and betrays it to the enemy, be he a military or civil
officer or a private citizen, he shall suffer death.
90. A traitor under the law of war, or a war traitor, is a person in a
place or district under martial law who, unauthorized by the military
commander, gives information of any kind to the enemy or holds inter-
course with him.
91. The war traitor is always severely punished. If his offense con-
sists in betraying to the enemy anything concerning the condition,
safety, operations, or plans of the troops holding or occupy hig the
place or district, his punishment is death.
MILITARY LAWS OF THE UNITED STATES. 1087
92. If the citizen or subject of a country or place invaded or con-
quered gives information to his own government, from which he is
separated by the hostile army, or to the army of his government, he is
a war traitor, and death is the penalty of his offense.
93. All armies in the field stand in need of guides, and impress them
if the}^ can not obtain them otherwise.
94. No person having been forced by the enemy to serve as guide is
punishable for having done so.
95. If a citizen of a hostile and invaded district voluntarily serves
as a guide to the enemy, or offers to do so, he is deemed a war traitor,
and shall suffer death.
96. A citizen serving voluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his
country.
97. Guides, when it is clearly proved that they have misled intention-
ally, may be put to death.
98. All unauthorized or secret communication with the enemy is
considered treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign
visitors in the same, can claim no immunity from this law. They may
communicate with foreign parts, or with the inhabitants of the hostile
country, so far as the military authorities permit, but no further.
Instant expulsion from the occupied territory would be the very least
punishment for the infraction of this rule.
99. A messenger carrying written dispatches or verbal messages
from one portion of the army, or from a besieged place, to another
portion of the same army or its government, if armed and in the
uniform of his army, and if captured while doing so in the territory
occupied by the enemy, is treated by the captor as a prisoner of war.
If not in uniform, nor a soldier, the circumstances connected with his
capture must determine the disposition that shall be made of him.
100. A messenger or agent who attempts to steal through the ter-
ritory occupied by the enemy to further, in any manner, the interests
of the enemy, if captured is not entitled to the privileges of the pris-
oner of war, and may be dealt with according to the circumstances of
the case.
101. While deception in wan is admitted as a just and necessary
means of hostility, and is consistent with honorable warfare, the com-
mon law of war allows even capital punishment for clandestine or
treacherous attempts to injure an enemy, because they are so dangerous
and it is so difficult to guard against them.
102. The law of war, like the criminal law regarding other offenses,
makes no difference on account of the difference of sex, concerning the
spy, the war traitor, or the war rebel.
103. Spies, war traitors, and war rebels are not exchanged according
to the common law of war. The exchange of such persons would
1088 MILITARY LAWS OF THE UNITED STATES.
require a special cartel, authorized by the government, or, at a great
distance from it, by the chief commander of the army in the field.
104. A successful spy or war traitor, safely returned to his own army,
and afterwards captured as an enemy, is not subject to punishment for
his acts as a spy or war traitor, but he may be held in closer custody as
a person individually dangerous.
SECTION VI.
EXCHANGE OF PRISONERS — FLAGS OF TRUCE1 — FLAGS OF PROTECTION.
105. Exchanges of prisoners take place, number for number, rank
for rank, wounded for wounded, with added condition for added con-
dition, such, for instance, as not to serve for a certain period.
1 FLAGS OF TRUCE.
1. Dispatch of flag.— Communication by flag of truce, being an exception to the fun-
damental rule of nonintercourse between belligerents, is not to be resorted to except
by the authority of the President or the commanding general of the army or forces
operating against the enemy in the field. No inferior commander is empowered to
resort to the use of a flag of truce except by the direction of such authorized superior.
2. The party sent out with a flag of truce should be commanded by a commis-
sioned officer designated for the purpose. His command should consist of such num-
ber of noncommissioned officers and soldiers as may be requisite for the purposes of
the mission, and no more; the party should be reduced to the least number that
may be adequate and reasonable. No military person not a constituent of the party,
ana no civilian, should be allowed to accompany the flag, except by the express
authority of the commander dispatching the same.
3. The officer commanding tne party, or bearer proper, should be furnished with
specific instructions, in writing if practicable, informing and directing him precisely
as to his function and duties. Communications committed to him to be conveyed to
the enemy should, if practicable, be in writing.
4. The officer in charge should comply literally and exactly with his instructions,
not exceeding them. On approaching the enemy's lines he should exhibit the flag,
or white signal employed as such, in time and in such a manner as to prevent his
party being fired upon. He should deliver his dispatches, if any, to an officer duly
authorized to receive them, should receive and carefully retain such dispatches as
may be delivered to him, and, his mission being completed, should return as promptly
as possible within his own lines. During his absence he should require his escort to
confine themselves to their strict duties, and prohibit their holding any communica-
tion, except such as may be absolutely necessary, with the military persons or civil-
ians within the enemy's lines.
5. The officer in charge, on his return, is to make at once to the commander by
whose order he was dispatched a full report of the performance of his mission, includ-
ing his precise communications to the enemy and the precise acts and communica-
tions of the enemy in reply thereto. He should furnish also a list of all persons, if
any, accompanying the flag or returning with it, such as exchanged prisoners, per-
sons authorized to pass the lines, etc., with the fact of their examination and all
obtainable particulars of their character and purposes.
6. Reception of flag. — By the law of nations, the bearer in good faith of a flag of truce
is, with his escort, inviolable. The flag is not to be fired upon, nor the bearer, or per-
sons properly accompanying him, to be made prisoners. They are to be received
with respect and treated with courtesy, and at the end of their mission to be allowed
to return without impediment. Where unavoidably detained, they will, if necessary,
properly be sheltered and subsisted and their animals foraged.
7. But as a flag of truce may be employed as a coyer for illegal designs, the party
should not be allowed to enter within the outer line of guards or pickets in the
absence of express authority from the commander of the forces, and such precautions
should be taken as to prevent their making observations or obtaining information.
8. The flag should either be met by another flag on the neutral ground or territory
MILITARY LAWS OF THE UNITED STATES. 1089
106. In exchanging prisoners of war, such numbers of persons of
inferior rank may be substituted as an equivalent for one of superior
rank as may be agreed upon by cartel, which requires the sanction of
the Government or of the commander of the army in the field.
107. A prisoner of war is in honor bound truly to state to the captor
his rank, and he is not to assume a lower rank than belongs to him, in
order to cause a more advantageous exchange, nor a higher rank, for
the purpose of obtaining better treatment.
intervening between the hostile lines, or, on its arrival near the outer line, should be
halted by the nearest sentinel or vedette and ordered to face in the direction from
which it came. The sentinel or vedette will then, through his corporal, communi-
cate the arrival of the flag to the officer in command of the nearest picket post or
guard, who will himself proceed, or will send a commissioned or noncommissioned
officer, with a small detachment, to meet the flag and ascertain its object, of which
he will at once cause information to be transmitted to the chief commander. The
commander, if he desires to receive the flag, which, in discretion, he may refuse to
do, will thereupon dispatch a commissioned officer, with suitable escort and proper
instructions, to formally receive the flag and respond officially to its communications,
or to take charge of such dispatches as the bearer may desire to have forwarded to
commander, returning later with the response, if any.
9. Should the officer in charge of the flag insist, in obedience to his instructions,
upon a personal interview with the chief commander, the latter may, in his discre-
tion, refuse such interview, or he may proceed to meet the flag in person, or he may
cause the bearer to be conducted to his headquarters, or other place appointed, his
eyes being bandaged if deemed expedient. But no no member of his escort should,
except by express authority, be admitted with him within the lines.
10. Where, indeed, the flag is employed as a means of safe conduct for exchanged
prisoners, hostages, refugees, or other civilians permitted by proper authority to pass
the lines, these may be admitted by the authority of the chief commander, after
having been carefully examined to ascertain if they have in their possession supplies
or merchandise. They should be allowed to bring in with them only necessary per-
sonal effects.
11. IJntil the purpose of a flag of truce is accomplished and the party returns, the
bearer and those accompanying him (except so far as admitted by authority within
the lines) will remain halted in the same or other appointed place, in the presence
of an adequate guard, or, if unusual delay be involved, may be allowed to make
camp, under proper observation. During their stay no conversation should be held
with them on any subject directly or indirectly relating to military or public affairs,
and the guard attending them should be accompanied by a commissioned or noncom-
missioned officer to insure the observance of this precaution.
12. Should the officer in charge of the flag, or any of his escort, be detected in an
attempt to obtain illicit information, or in any other form of abuse of the privilege
of the flag, or should there arise a reasonable ground of suspicion that the flag has
not been dispatched, or is not being employed, in good faith, the bearer and those
implicated may be detained for investigation and punishment according to the laws
of war. ( G. O. , No. 43, Headquarters of the Army, May 20, 1893. )
The use of flags of truce by the enemy during "the late war was recognized as a
belligerant right.(a) But the admission by flag of truce within the lines of the
United States Army in time of war of persons coming from the lines of an enemy, can
not entitle such persons to immunity from subsequent inquiry into their character
and business, or from restraint and detention upon reasonable grounds of suspicion
appearing against them. Moreover, a flag of truce does not operate as a saje-conduct,
allowing the party admitted under it a free passage through the territory or a dispen-
sation from the legal effects of war, but affords him a merely temporary protection
not to be continued after the immediate mission of the flag has been accomplished.
So held that a person who, during the war, availed himself of a flag of truce to enter
our lines for an illegal purpose, was in no degree protected by the flag from liability
to arrest, upon his purpose becoming apparent, or from amenability to trial and pun-
ishment for any ov.ert act in violation of the laws of war. (Dig. Opin. J. A. G., 1374. )
a Williams v. Bruffy, 6 Otto, 187.
22924—08 69
1090 MILITARY LAWS OF THE UNITED STATES.
Offenses to the contrary have been justly punished by the com-
manders of released prisoners, and may be good cause for refusing to
release such prisoners.
108. The surplus number of prisoners of war remaining after an
exchange has taken place is sometimes released either for the payment
of a stipulated sum of money, or, in urgent cases, of provision, cloth-
ing, or other necessaries.
Such arrangement, however, requires the sanction of the highest
authority.
109. The exchange of prisoners of war is an act of convenience to
both belligerents. If no general cartel has been concluded it can not
be demanded by either of them. No belligerent is obliged to exchange
prisoners of war.
A cartel'is voidable as soon as either party has violated it.
110. No exchange of prisoners shall be made except after complete
capture, and after an accurate account of them, and a list of the
captured officers has been taken.
111. The bearer of a flag of truce can not insist upon being admitted.
He must always be admitted with great caution. Unnecessary fre-
quency is carefully to be avoided.
112. If the bearer of a flag of truce offer himself during an engage-
ment, he can be admitted as a very rare exception only. It is no
breach of good faith to retain such flag of truce, if admitted during
the engagement. Firing is not required to cease on the appearance of
a flag of truce in battle.
113. If the bearer of a flag of truce, presenting himself during an
engagement, is killed or wounded it furnishes no ground of complaint
whatever.
114. If it be discovered, and fairly proved, that a flag of truce has
been abused for surreptitiously obtaining military knowledge, the
bearer of the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its
sacredness, that while its abuse is an especially heinous offense, great
caution is requisite, on the other hand, in convicting the bearer of a
flag of truce as a spy.
114. It is customary to designate by certain flags (usually yellow)
the hospitals in places which are shelled, so that the besieging enemy
may avoid firing on them. The same has been done in battles when
hospitals are situated within the field of the engagement.
116. Honorable belligerents often request that the hospitals within
the territory of the enemy may be designated, so that the}' may be
spared.
An honorable belligerent allows himself to be guided by flags or
signals of protection as much as the contingencies and the necessities
of the fight will permit.
MILITARY LAWS OF THE UNITED STATES. 1091
117. It is justly considered an act of bad faith, of infamy or fiendish-
ness, to deceive the enemy by flags of protection. Such act of bad
faith may be good cause for refusing to respect such flags.
118. The besieging belligerent has sometimes requested the besieged
to designate the buildings containing collections of wor&s of art, scien-
tific museums, astronomical observatories, or precious libraries, so that
their destruction may be avoided as much as possible.
SECTION VII.
THE PAROLE.
119. Prisoners of war may be released from captivity by exchange,
and, under certain circumstances, also by parole.
120. The term parole designates the pledge of individual good faith
and honor to do, or to omit doing, certain acts after he who gives his
parole shall have been dismissed, wholly or partially, from the power
of the captor.
121. The pledge of the parole is alwaj^s an individual, but not a pri-
vate act.
122. The parole applies chiefly to prisoners of war whom the captor
allows to return to their country or to live in greater freedom within
the captor's country or territory on conditions stated in the parole.
123. Release of prisoners of war by exchange is the general rule;
release by parole is the exception.
124. Breaking the parole is punished with death when the person
breaking the parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by
the belligerents.
125. When paroles are given and received there must be an exchange
of two written documents, in which the name and rank of the paroled
individuals are accurately and truthfully stated.
126. Commissioned officers only are allowed to give their parole, and
they can give it only with the permission of their superior, as long as
a superior in rank is within reach.
127. No noncommissioned officer or private can give his parole except
through an officer. Individual paroles not given through an officer are
not only void, but subject the individuals giving them to the punish-
ment of death as deserters. The only admissible exception is where
individuals, properly separated from their commands, have suffered
long confinement without the possibility of being paroled through an
officer.
128. No paroling on the battlefield, no paroling of entire bodies of
troops after a battle, and no dismissal of large numbers of prisoners,
with a general declaration that they are paroled, is permitted or of any
value.
1092 MILITARY LAWS OF THE UNITED STATES.
129. In capitulations for the surrender of strong- places or fortified
camps the commanding officer, in cases of urgent necessity, may agree
that the troops under his command shall not fight again during the
war unless exchanged.
130. The usual pledge given in the parole is not to serve during the
existing war unless exchanged.
This pledge refers only to the active service in the field, against the
paroling belligerent or his allies actively engaged in the same war.
These cases of breaking the parole are patent acts, and can be visited
with the punishment of death; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortifying places not
besieged, quelling civil commotions, fighting against belligerents uncon-
nected with the paroling belligerents, or to civil or diplomatic service
for which the paroled officer may be employed.
131. If the government does not approve of the parole, the paroled
officer must return in to captivity, and should the enemy refuse to receive
him, he is free of his parole.
132. A belligerent government may declare, by a general order,
whether it will allow paroling, and on what conditions it will allow it.
Such order is communicated to the enemy.
133. No prisoner of war can be forced by the hostile government to
parole himself, and no government is obliged to parole prisoners of war
or to parole all captured officers if it paroles any. As the pledging of
the parole is an individual act, so is paroling, on the other hand, an act
of choice on the part of the belligerent.
134. The commander of an occupying army may require of the civil
officers of the enemy, and of its citizens, any pledge he may consider
necessary for the safety or security of his army, and upon their failure
to give it he may arrest, confine, or detain them.
SECTION VIII.
ARMISTICE — CAPITULATION.
135. An armistice is the cessation of active hostilities for a period
agreed between belligerents. It must be agreed upon in writing, and
duly ratified by the highest authorities of the contending parties.
136. If an armistice be declared, without conditions, it extends no
further than to require a total cessation of hostilities along the front of
both belligerents.
If conditions be agreed upon, they should be clearly expressed, and
must be rigidly adhered to by both parties. If either party violates
any express condition, the armistice may be declared null and void by
the other.
137. An armistice may be general, and valid for all points and lines
of the belligerents, or special; that is, referring to certain troops or
certain localities only.
MILITARY LAWS OF THE UNITED STATES. 1093
An armistice may be concluded for a definite time or for an indefinite
time, during which either belligerent may resume hostilities on giving
the notice agreed upon to the other.
138. The motives which induce the one or the other belligerent to
conclude an armistice, whether it be expected to be preliminary to a
treaty of peace or to prepare during the armistice for a more vigorous
prosecution of the war, does in no way affect the character of the
armistice itself.
139. An armistice is binding upon the belligerents from the day of
the agreed commencement; but the officers of the armies are respon-
sible from the day only when they receive official information of its
existence.
140. Commanding officers have the right to conclude armistices bind-
ing on the district over which their command extends, but such armis-
tice is subject to the ratification of the superior authority, and ceases so
soon as it is made known to the enemy that the armistice is not ratified,
even if a certain time for the elapsing between giving notice of cessa-
tion and the resumption of hostilities should have been stipulated for.
141. It is incumbent upon the contracting parties of an armistice to
stipulate what intercourse of persons or traffic between the inhabitants
of the territories occupied by the hostile armies shall be allowed, if any.
If nothing is stipulated, the intercourse remains suspended, as during
actual hostilities.
142. An armistice is not a partial or a temporary peace; it is only
the suspension of military operations to the extent agreed upon by the
parties.
143. When an armistice is concluded between a fortified place and
the army besieging it, it is agreed by all the authorities on this subject
that the besieger must cease all extension, perfection, or advance of
his attacking works as much so &s from attacks by main force.
But as there is a difference of opinion among martial jurists whether
the besieged have the right to repair breaches or to erect new works
of defense within the place during an armistice, this point should be
determined by express agreement between the parties.
144. So soon as a capitulation is signed, the capitulator has no right
to demolish, destroy, or injure the works, arms, stores, or ammunition
in his possession during the time which elapses between the signing
and the execution of the capitulation, unless otherwise stipulated in
the same.
145. When an armistice is clearly broken by one of the parties, the
other party is released from all obligation to observe it.
146. Prisoners taken in the act of breaking an armistice must be
treated as prisoners of war, the officer alone being responsible who
gives the order for such a violation of an armistice. The highest
authority of the belligerent aggrieved may demand redress for the
infraction of an armistice.
1094 MILITARY LAWS OF THE UNITED STATES.
147. Belligerents sometimes conclude an armistice while their pleni-
potentiaries are met to discuss the conditions of a treaty of peace; but
plenipotentiaries may meet without a preliminary armistice; in the
latter case the war is carried on without any abatement.
SECTION IX.
ASSASSINATION.
148. The law of war does not allow proclaiming either an individual
belonging to the hostile army or a citizen or a subject of the hostile
government an outlaw who ma}7 be slain without trfol by any captor,
any more than the modern law of peace allows such intentional out-
lawry; on the contrary, it abhors such outrage. The sternest retalia-
tion should follow the murder committed in consequence of such
proclamation, made by whatever authority. Civilized nations look
with horror upon offers of rewards for the assassination of enemies as
relapses into barbarism.
SECTION X.
INSURRECTION — CIVIL WAR — REBELLION.
149. Insurrection is the rising of people in arms against their gov-
ernment or a portion of it, or against one or more of its laws, or against
an officer or officers of the government. It may be confined to mere
armed resistance, or it may have greater ends in view.
150. Civil war is war between two or more portions of a country or
state, each contending for the mastery of the whole, and each claiming
to be the legitimate government. The term is also sometimes applied
to war of rebellion, when the rebellious provinces or portions of the
state are contiguous to those containing the seat of government.
151. The term rebellion is applied to an insurrection of large extent,
and is usually a war between the legitimate government of a country
and portions of provinces of the same who seek to throw off their
allegiance to it and set up a government of their own.
152. When humanity induces the adoption of the rules of regular
war toward rebels, whether the adoption is partial or entire, it does in
no way whatever imply a partial or complete acknowledgment of their
government, if they have set up one, or of them as an independent or
sovereign power. Neutrals have no right to make the adoption of the
rules of war by the assailed government toward rebels the ground of
their own acknowledgment of the revolted people as an independent
power.
153. Treating captured rebels as prisoners of war, exchanging them,
concluding of cartels, capitulations, or other warlike agreements with
them, addressing officers of a rebel army by the rank they may have
MILITARY LAWS OF THE UNITED STATES. 1095
in the same, accepting flags of truce, or, on the other hand, proclaim-
ing martial law in their territory, or levying war taxes or forced
loans, or doing any other act sanctioned or demanded by the law and
usages of public war between sovereign belligerents, neither proves
nor establishes an acknowledgment of the rebellious people, or of the
government which they may have erected, as a public or sovereign
power. Nor does the adoption of the rules of war toward rebels imply
an engagement with them extending beyond the limits of these rules.
It is victor}^ in the field that ends the strife and settles the future
relations between the contending parties.
154. Treating, in the field, the rebellious enemy according to the law
and usages of war has never prevented the legitimate government
from trying the leaders of the rebellion or chief rebels for high treason,
and from treating them accordingly, unless they are included in a
general amnesty.
155. All enemies in regular war are divided into two general classes —
that is to say, into combatants and noncombatants, or unarmed citizens
of the hostile government.
The military commander of the legitimate government, in a war of
rebellion, distinguishes between the loyal citizen in the revolted portion
of the country and the disloyal citizen. The disloyal citizen may fur-
ther be classified into those citizens known to sympathize with the
rebellion without positively aiding it, and those who, without taking
up arms, give positive aid and comfort to the rebellious enemy without
being bodily forced thereto.
156. Common justice and plain expediency require that the military
commander protect the manifestly loyal citizens in revolted territories
against the hardships of the war as much as the common misfortune of
all war admits.
The commander will throw the burden of the war, as much as lies
within his power, on the disloyal citizens of the revolted portion or
province, subjecting them to a stricter police than the noncombatant
enemies have to suffer in regular war; and if he deems it appropriate,
or if his government demands of him that every citizen shall, by an
oath of allegiance or by some other manifest act, declare his fidelity
to the legitimate government, he may expel, transfer, imprison, or fine
the revolted citizens who refuse to pledge themselves anew as citizens
obedient to the law and loyal to the government.
Whether it is expedient to do so, and whether reliance can be placed
upon such oaths, the commander or his government have the right to
decide.
157. Armed or unarmed resistance by citizens of the United States
against the lawful movements of their troops is levying war against
the United States, and is therefore treason.
CIVIL SERVICE RULES.1
[Amendments to July ;5, 1901.]
SYNOPSIS OF RULES.
RULE I. Regulations to be prescribed; definition of
terms.
RULE II. Penalties and prohibitions; status of persons
after their positions are classified.
RULE III. Extent of each of the five branches of the
classified service; employees excluded from the classified
service.
RULE IV. Examinations authorized; when noncompeti-
tive examinations may be held; appointment and duties
of boards of examiners; executive officers to facilitate
examinations.
RULE V. Restrictions governing applicants and applica-
tions; disqualifications of applicants and eligibles; age
limitations of applicants.
RULE VI. Exceptions from examination.
RULE VII. Rating of examination papers; relative stand-
ing of eligibles; relative standing of preference claimants;
registration of applicants; term of eligibility.
RULE VIII. Certifications and selections for filling va-
cancies; revocation of appointments of eligibles not entitled
to certification; probationary period and absolute appoint-
ment; objection by appointing officer to eligible; appor-
tionment of appointments in Washington, D. C. ; to what
class appointment must be made; eligibles with same aver-
age percentage; districts to be formed for filling vacancies
in certain positions; appointment and promotion of substi-
tutes; temporary or emergency appointments.
1 The civil service rules are merely Executive rules and regulations made by author-
ity of law, and are effective, if at all, only for the internal control and government
of the civil service and the Executive Departments. The courts of equity have no
jurisdiction or authority to enforce them. Taylor v. Kercheval, 82 Fed. Rep., 487;
Carrv. Gordon, 82, ibid., 373.
The civil service rules promulgated by the President have not the force of law so
as to give the employees any tenure or right to the office. Morgan v. Nunn, 84 Fed.
Rep., 551; Carr v. Gordon, 82 Id., 373; Taylors. Kercheval, 82 Fed. Rep., 497.
In the absence of evidence to the contrary the accounting officers will, in the set-
tlement of salary accounts, assume that the civil service law and rules have been
complied with by the officer having the power of appointment. Ill Compt. Dec., 22.
1096
MILITARY LAWS OF THE UNITED STATES. 1097
RULE IX. Reinstatements.
RULE X. Transfers.
RULE XI. Promotions.
RULE XII. List of all positions and employments and re-
ports of changes in service to be furnished to commission.
In the exercise of power vested in him by the Constitu- orde?mulgating
'tion, and of authority given to him by the seventeen hun-
dred and fifty-third section of the Revised Statutes, and by
an act to regulate and improve the civil service of the
United States, approved January 16, 1883, the President
hereby makes and promulgates the following rules, and
revokes all others:
RULE I.
1. The United States Civil Service Commission shall
have authority to prescribe regulations in pursuance of, ti(JJeSflmtions of
and for the execution of, the provisions of these rules and terms-
of the civil-service act.
2. The several terms hereinafter mentioned, wherever
used in these rules or the regulations of the commission,
shall be construed as follows:
(a) The torm c ' civil-service act" refers to "An act to
regulate and improve the civil service of the United States,"
approved January 16, 1883.
(£) The term ' 4 classified service " refers to all that part
of the executive civil service of the United States included
within the provisions of the civil-service act and these rules.
(c) The term tc grade," in connection with employees or
positions, refers to a group of employees or positions in
the classified service arranged upon the basis of duties
performed without regard to salaries received.
(d) The term " class," in connection with employees or
positions, refers to a group of employees or positions in
any grade arranged upon the basis of salaries received, in
pursuance of the provisions of section 163 of the Revised
Statutes and of section 6 of the civil-service act.
(e) The term " excepted position" refers to any position
within the provisions of the civil-service act, but excepted
from the requirement of competitive examination or reg-
istration for appointment thereto.
RULE II.
e executi
United States who shall willfully violate any of the pro-or"ruies
1. Any person in the executive civil service of the Dismissal for
J violation of act
1098 MILITARY LAWS OF THE TTNITED STATES.
visions of the civil-service act or of these rules shall be
dismissed from office.
enS wtthereie£ ^. No person in the executive civil service shall use his
tions. official authorit}^ or official influence for the purpose of
interfering with an election or controlling the result
thereof.
chande81ofis?ank **' -^o Person m ^ne executive civil service shall dismiss,
forpoiiticau>rre-or cause to be dismissed, or make any attempt to procure
the dismissal of, or in any manner change the official rank
or compensation of any other person therein because of
his political or religious opinions or affiliations.
ofNoiUicai°orreS ^' -^o <luestion in any examination, or form of applica-
of a°us n cST ^on' snaU be so framed as to elicit information concerning,
etc- nor shall any inquiry be made concerning, nor any other
attempt be made to ascertain, the political or religious
opinions or affiliations of any applicant, competitor, or
eligible; and all disclosures thereof shall be discounte-
nanced. And no discrimination shall be exercised, threat-
ened, or promised, against or in favor of any applicant,
competitor, or elibible because of his political or religious
opinions or affiliations.
tionsthat?annot ^' -^o recommendation of an applicant, competitor, or
or conesWemiled' e^&iWe> involving any disclosure of his political or reli-
gious opinions or affiliations, shall be received, filed, or
considered by the commission, by any board of examiners,
or by any nominating or appointing officer.
inPc1m*acterlike ®' -^n making removals or reductions, or in imposing
punishment, for delinquency or misconduct, penalties like
in character shall be imposed for like offenses, and action
thereupon shall be taken irrespective of the political or
religious opinions or affiliations of the offenders.
)iSoatees°aft?r ^' ^ person holding a position on the date said position
classification, jg classified under the civil-service act shall be entitled to
all the rights and benefits possessed by persons of the same
class or grade appointed upon examination under the pro-
visions of said act.
Procedure in §. No removal shall be made from the competitive clas-
removaJs.
sifted service except for just cause and for reasons given
in writing; and the person sought to be removed shall
have notice and be furnished a copy of such reasons, and
be allowed a reasonable time for personally answering
the same in writing. Copy of such reasons, notice, and
answer, and of the order of removal shall be made a part
of the records of the proper department or office; and the
reasons for any change in rank or compensation within
MILITARY LAWS OF THE UNITED STATES. 1099
the competitive classified service shall also be made a part
of the records of the proper department or office.1
RULE III.
1. All that part of the executive civil service of the Different
United States which has been or ma}7 hereafter be classi- classified serv-
ice.
fied under the civil-service act shall be arranged in
branches as follows: The departmental service, * * *
2. The departmental service shall include
(a) All officers and employees of whatever designation, Extent of de-
J ' partmental serv-
except persons merely employed as laborers or workmen lee-
and persons whose appointments are subject to confirma-
tion by the Senate, however or for whatever purpose
employed, whether compensated by a fixed salary or other-
wise, who are serving in or on detail from —
The several Executive Departments, the commissions,
and offices in the District of Columbia.
*****
The force employed under custodians of public
buildings.
* * * * *
The Engineer Department at large.
The Ordnance Department at large.
(b) All executive officers and employees outside of the
District of Columbia not covered in (#), of whatever desig-
nation, except persons merely employed as laborers or
workmen and persons whose appointments are subject to
confirmation by the Senate, whether compensated by a
fixed salary or otherwise—
Who are serving in a clerical capacity or whose duties
are in whole or in part of a clerical nature.
Who are serving in the capacity of watchman or
messenger.
Who are serving in the capacity of physician, hospital
steward, nurse, or whose duties are of a medical
nature.
Who are serving in the capacity of draftsman, civil
engineer, steam engineer, electrical engineer, com-
puter, or fireman.
Amended July 27, 1897, and May 29, 1899.
The order of the President of July 27, 1897, prohibiting removals from positions
subject to competitive examination except upon written charges and notice, is an
administrative order regulating the conduct of the President's subordinates; but it
has not the force of law, and confers upon an incumbent no right to hold office
indefinitely, and no right of which a court* of equitv can take cognizance. Carr v.
Gordon, 82 Fed. Rep., 373.
1100 MILITARY LAWS OF THE UNITED STATES.
^ Al1 officers and employees who have heretofore been
covered by rules. classified under the civil-service act shall be considered as
still classified and subject to the provisions of these rules.
8- Tne following-mentioned positions or employees shall
covered by rules. no^ ^ sukject to any of the provisions of these rules, ex-
cept sections 1, 2, and 3 of Rule II: 1
(a) Any position filled by a person whose place of pri-
vate business is conveniently located for his performance
of the duties of said position, or any position filled by a
person remuneraied in one sum both for services rendered
therein, and for necessary rent, fuel, and lights furnished
for the performance of the duties thereof: Provided, That
in either case the performance of the duties of said posi-
tion requires only a portion of the time and attention of
the occupant, paying him a compensation not exceeding,
for his personal salary only, three hundred dollars per
annum, and permitting of his pursuing other regular busi-
ness or occupation.
(&) Any person in the military or naval service of the
United States who is detailed for the performance of civil
duties.
(c) Any person employed in a foreign country, under
the State Department, or who is temporarily employed in
a confidential capacity in a foreign country under any
executive department or other office.1
(d) Any position the duties of which are of quasi-mili-
tary or quasi-naval character and for the performance of
which duties a person is enlisted for a term of years.
*******
(g) Any person in the Quartermaster's Department at
large of the United States Army employed as train mas-
ter, chief packer, foreman packer, pack master, master
baler, foreman of laborers, superintendent of stables, or
forage master. Appointments to these positions shall be
made hereafter oti registration tests of fitness prescribed
in regulations to be issued by the Secretary of War and
approved by the President.1
(h} Any person in the Medical Department at large of
the United States Army employed as chief packer, packer,
or assistant packer. Appointments to these positions
shall be made hereafter on registration tests of fitness pre-
scribed in regulations to be issued by the Secretary of
War and approved by the President.1
(i) Any person in the Ordnance Department at large of
the United States Ariny employed as foreman, assistant
'Amended May 29, 1899.
MILITARY LAWS OF THE UNITED STATES. 1101
foreman, forage master, weigher, skilled laborer, guard,
or on piecework. Appointments to these positions shall
be made hereafter on registration tests of fitness prescribed
in regulations to be issued by the Secretary of War and
approved by the President.1
(j) Any person in the Engineer Department at large
of the United States Army employed as subinspector,
overseer, suboverseer, superintendent, master lock mana-
ger, deputy lock manager, assistant superintendent of
canal, chief deputy inspector, deputy inspector, rodman,
stadiaman, chainman, foreman, timekeeper, lock master,
assistant lock master, custodian, storekeeper, fort keeper,
torpedo keeper, assistant torpedo keeper, light keeper,
board master, subforeman, master laborer, gauge reader,
steward, dam tender, assistant dam tender, helper, car-
penter's helper, machinist's helper, quarry master, black-
smith's helper, climber, barge master, recorder of vessels,
track man, gardener, assistant gardener, or weigher.
Appointments to these positions shall be made hereafter
on registration tests of fitness prescribed in regulations to
be issued by the Secretary of War and approved by the
President.1
(k) Any person in the national military parks at Gettys-
burg, Shiloh, Chickamauga, Chattanooga, Vicksburg, and
Antietam employed as commissioner, assistant in historical
work, agent for purchases of land, historian, secretary,
rodman, chainman, assistant superintendent, chief guard-
ian, guardian, guard, inspector, carpenter, steam engineer,
or painter. Appointments to these positions shall be made
hereafter on registration tests of fitness prescribed in regu-
lations to be issued by the Secretary of War and approved
by the President.1
* * , * • * * * *
RULE IV.
1. In pursuance of the provisions of section 2 of the
civil-service act, there shall be provided, to test fitness for
admission to positions which have been, or may hereafter
be, classified under the civil-service act, examinations of a
practical and suitable character involving such subjects
and tests as the commission may direct.
2. No person shall be appointed to, or be employed in,
any position which has been, or may hereafter be, classi-
fied under the civil-service act, until he shall have passed
1 Amended May 29, 1899.
1102 MILITARY LAWS OF THE UNITED STATES.
the examination provided therefor, or unless he is spe-
cially exempt from examination by the provisions of said
act or the rules made in pursuance thereof.1
Pe^aven0exca°mi- 3- In pursuance of the provisions of section 2 of the
heid°ns may be civil-service act, wherever competent persons can be found
who are willing to compete, no noncompetitive examina-
tion shall be given except as follows:
(a) To test fitness for transfer or for promotion in a
part of the service to which promotion regulations have
not been applied.
******
when exami- (c) To test the fitness of a person whom the head of an
waived. mi e Executive Department or the Secretary of the Smithsonian
Institution shall nominate for appointment to a position
in the classified service. The appointing officer in making
such nomination shall certify that, in his opinion, the posi-
tion to be filled requires such peculiar qualifications in
respect to knowledge and ability, or such scientific or
special attainments wholly or in part professional or tech-
nical as are not ordinarily acquired in the executive service
of the United States, and for the reasons set forth the best
interests of the public service require that an examination
should be waived in whole or in part. If the President
of the United States shall approve such nomination, the
Civil Service Commission shall thereupon grant a certifi-
cate of qualification, upon such evidence as may be satis-
factory to it, that the person so nominated is eligible for
and may be appointed to such position by reason of his
ascertained qualifications, and by reason of his age, health,
and moral character: Provided, That a person so nomi-
1 No person is eligible to an examination —
(a} Who is not a citizen of the United States (see sec. 35, Regulation V);
(b) Who is not within the age limitations prescribed for the examination for which
he applies (see sees. 14-18); •
(c) Who is physically disqualified for the service which he seeks;
(d) Who is addicted to the habitual use of intoxicating beverages to excess;
m Who is barred by Application Regulations IX and X (see sec. 35);
.(/) Who is enlisted in the United States Army or Navy and has not secured per-
mission for his examination from the Secretary of War or the Secretary of the Navy,
respectively.
(g) Who has been dismissed from the public service for delinquency or misconduct
within one year preceding the date of his application;
(h) Who has railed after probation to receive absolute appointment to the position
for which he again applies within one year from the date of the expiration of his
probationary service;
(i) Who within one year has taken the same kind of examination for which he
wishes to again apply : Provided, That persons who pass or fail in an examination
may, upon filing a new application, be reexamined at the next annual examinations,
though a full year has not quite elapsed since the former examination (see sec. 180) ;
(?') Who has made a false statement in his application or has been guilty of fraud
or deceit in any manner connected with his application or examination, or who has
been guilty of crime or infamous or notoriously disgraceful conduct* Section 12,
MANUAL OF EXAMINATION.
Dates and
exam-
MILITARY LAWS OF THE UNITED STATES. 1103
nated and appointed shall not be transferred to any other
position in the classified service except to one that may
be filled under the provisions of this clause, and shall not
be assigned to any other duties than those pertaining to
the particular position to which thus appointed.1
4. In pursuance of the provisions of section 3 of the places 6oSf
civil-service act, examinations shall be provided at such matlons-
places and upon such dates as the commission shall deem
most practicable to subserve the convenience of applicants
and the needs of the service.
5. In pursuance of the provisions of section 3 of t
civil-service act, the commission shall appoint, from per- SSJ^8 of exam"
sons in the Government service, such boards of examiners
as it may deem necessary. The members of said boards
shall perform such duties as the commission may direct in
connection with examinations, appointments, and promo-
tions in any part of the service which has been or may
hereafter be classified. The members of any board of ex-
aminers in the performance of their duties as such shall
be under the direct and sole control and authority of the
commission. The duties performed by the members of
any board of examiners in their capacity as such shall be
considered part of the duties of the office in which they
are serving, and time shall be allowed for the peformance
of said duties during the office hours of said office. The
members of any board of examiners shall not all be ad-
herents of one political party when persons of other po-
litical parties are available and competent to serve upon
said board.
6. In pursuance of the provisions of section 3 of the cersXtoUfaciiitete
civil-service act, all executive officers of the United States ex
shall facilitate civil-service examinations, and postmasters,
customs officers, internal-revenue officers, and custodians
of public buildings at places where such examinations are
to be held shall, for the purpose of such examinations,
permit and arrange for the use of suitable rooms under
their charge and for heating, lighting, and furnishing the
same.
RULE V.
1. Every applicant for examination must be a citizen of o
the United States, must be of proper age, and must make
an application under oath, upon a form prescribed by the
commission, and accompanied by such certificates as may
be prescribed.
Amended May 29, 1899.
1104 MILITARY LAWS OF THE UNITED STATES.
2< -^o application for examination shall be accepted
from any person serving in the Army, the Navy, or
Marine Corps of the United States, unless the written
consent of the head of the Department under which said
person is enlisted is filed with his application.
appu- ^. The commission may, in its discretion, refuse to exam-
and ^ine an applicant, or to certify an eligible, who is physi-
cally so disabled as to be rendered unfit for the performance
of the duties of the position to which he seeks appoint-
ment; or who has been guilty of a crime or of infamous
or notoriously disgraceful conduct; or who has been dis-
missed from the service for delinquency or misconduct
within one year next preceding the date of his application;
or who has intentionally made a false statement in any-
material fact, or practiced or attempted to practice any
deception or fraud in securing his registration or appoint-
ment. Any of the foregoing disqualifications shall be
good cause for the removal of an eligible from the service
after his appointment.
Age limitation 4. No application for examination shall be accepted
for applicants.
NO age iimita- unless the applicant is within the age limitations fixed
taons for prefer- . . s .
ence claimants, herein f or entrance to the position to which he seeks to be
appointed: Provided, That subject to the other conditions
of these rules the application of any person whose claim
of preference under the provisions of section 1754 of the
Revised Statutes has been allowed by the commission may
be accepted without regard to his age: And provided
further, That in case of positions for which no maximum
age limitations are fixed herein the commission, upon con-
sultation with and approval of the proper head of Depart-
ment or office, ma}r, by regulation, determine maximum
age limitations and confine competition in examinations
for such positions to persons within such limitations.
The age limitations for entrance to positions in the differ-
ent branches of the service shall be as follows:
Minimum.
Maximum.
DEPARTMENTAL SERVICE:
Page, messenger boy, apprentice (other than appren-
tice in mints and assay offices) or student
14
20
*****
All other positions
20
No limit.
*****
fo^ptradetio si8 **' ^° aPplicati°n shall be accepted for examination for
tions. a position which belongs to one of the recognized mechan-
ical trades unless it shall be shown that the applicant has
served as apprentice or as journeyman or as apprentice and
MILITARY LAWS OF THE UNITED STATES. 1105
journeyman at said trade for such periods as the commis-
sion may prescribe.
RULE VI.
The following-named employees or positions which have Exceptions
been classified under the civil-service act shall be excepted tion o/registra-
f rom the requirement of examination or registration, tl(
unless as otherwise herein specifically stated.
EXECUTIVE OFFICE.
1. Not exceeding two private secretaries or confidential
clerks to the President.
ALL EXECUTIVE DEPARTMENTS.
2. Not exceeding two private secretaries or confidential
clerks to the head of each of the eight Executive Depart-
ments.1
3. Not exceeding one private secretary or confidential
clerk to each of the assistant heads of the eight Executive
Departments. 1
4. Not exceeding one private secretary or confidential
clerk to each of the following heads of bureaus appointed by
the President and confirmed by the Senate in the eight
Executive Departments: * * * in the War Depart-
ment, the Major-General Commanding the Army, the
Adjutant-General, the Inspector-General, the Judge-
Advocate-General, the Quartermaster-General, the Com-
missary-General of Subsistence, the Surgeon-General, the
Pay master- General, the Chief of Engineers, the Chief
of Ordnance, the Chief Signal Officer, the Chief of the Rec-
ord and Pension Office, and the Superintendent of Public
Buildings and Grounds.1 * * *
5. Not exceeding one private secretary or confidential
clerk to each of the heads of bureaus appointed by the
President and confirmed by the Senate in the eight Execu-
tive Departments not enumerated in paragraph four of
this rule, if authorized by law.1
6. All persons appointed by the President without con-
firmation by the Senate. x
WAR DEPARTMENT.
27. All paymasters' clerks.2
1 Amended May 29, 1899. 2 Amended June 29, 1900.
22924—08 70
1106 MILITARY LAWS OF THE UNITED STATES.
RULE VII.
in55on|aperam' !• Examination papers shall be rated on a scale of 100,
and the subjects therein shall be given such relative weights
as the commission may prescribe. After a competitor's
papers have been rated, he shall be duly notified of the
result thereof.
Eligible aver- 2. Every competitor who attains an average percentage
of 70 or over shall be eligible for appointment to the posi-
tion for which he was examined; and the names of eligi-
bles shall be entered, in the order of their average per-
centages, on the proper register of eligibles: Provided,
Eligible aver- That the names of all competitors whose claims to pref er-
age of preference . . r
claimants. ence under the provisions of section 1754 of the Revised
Statutes have been allowed by the commission, and who
attain an average percentage of 65 or over, shall be placed,
in the order of their average percentages, at the head of
the proper register of eligibles.
a RiSan5tion °f ^' ^or ^^m^ vacancies in positions for which competi-
ofBp?ef erei ce ^ve tests ai'e not Practicable, the registration of applicants
claimants. shall be in the order in which they fulfill the requirements
prescribed therefor by regulation of the commission: Pro-
vided^ That persons who served in the military or naval
service of the United States in the late war of the rebellion
or the Spanish-American war and were honorably dis-
charged therefrom, and persons who have been separated
from such position above mentioned through no delin-
quency or misconduct, shall be placed at the head of the
proper register in the order of their fulfillment of said
requirements.1
°f eligi" 4- The term °f eligibility shall be one year from the
May date on which the name of the eligible is entered on the
register: Provided, That this term may be extended, in
the discretion of the commission, for a further period of
one year from the date of the expiration of the first year's
eligibility, upon such conditions as the commission may
eiSt)iHtyi0upo0nPrescr^e: Anil provided further, That in case a person
enlistment. whose name is upon any register shall be mustered into
the military or naval service of the United States at a time
when the United States may be engaged in war, the period
of eligibility of such person shall, under such conditions
as the Civil Service Commission may prescribe, be consid-
ered as suspended during the time such eligible may be
serving in the Army or Navy of the United States.1
Amended May 29, 1899.
MILITARY LAWS OF THE UNITED STATES. 1107
RULE VIII.
In pursuance of the provisions of section 2 of the civil- Method of fiii-
. ... ing vacancies.
service act, whenever a vacancy occurs in any position
which has been, or may hereafter be, classified under the
civil-service act, and which is not an excepted position,
the filling of said vacancy, unless filled through noncom-
petitive examination or by reinstatement, transfer, pro-
motion, or reduction, shall be governed as follows:
1. The appointing or nominating officer shall request
certification to him of the names of eligibles for the posi-
tion vacant, and the commission shall certify to said officer
from the proper register the three names at the head
thereof which have not been three times certified to the
department or office in which the vacancy exists: Provided, lt®*£?*£ Corarn
That certification for temporary appointment shall not be appointment.
counted as one of the three certifications to which an eli-
gible is entitled: And provided further, That whenever certification
the sex of those whose names are to be certified is fixed by
any law, rule, or regulation, or is specified in the request
for certification, the names of those of the sex so fixed or
specified shall be certified; but in other cases certification
shall be made without regard to sex.
2. Of the three names certified the nominating- or ap- selections from
... m i n i i . „ „ certifications.
pointing officer shall select one, and if at the time of
selection there are more vacancies than one he may select
more than one name, unless otherwise directed by the
commission.
3. A person selected for appointment shall be notified
of his selection by the appointing or nominating officer, lzed-
and upon his acceptance shall receive from the appointing
officer a certificate of appointment for a probationary
period of six months, at the end of which period, if the
conduct and capacity of the probationer are satisfactory
to the appointing officer, his retention in the service shall what is equiv-
i i , , i . r-ij • . i , . i> -, . alent to absolute
be equivalent to ms absolute appointment; but it his con- appointment.
duct or capacity be not satisfactory, he shall be notified
by the appointing officer that he will not receive absolute Discharge of
appointment because of such unsatisfactory conduct or probatloner-
want of capacity ; and such notification shall discharge him
from the service: Provided, That the probation of an em- Termination of
i • AI_ T j» ii • probation in In-
ployee in the Indian school service shall terminate at the dian s6*1001 serv-
end of the school year in which he is appointed: And pro- service of sub-
vided further, That the time which an employee has act- probationary pe-
ually served as substitute in parts of the service where1
1108 MILITARY LAWS OF THE UNITED STATES.
substitutes are authorized shall be counted as part of the
probationary period of his regular appointment, but that
sendee notrto be time served under a temporary appointment shall not be
so counted.
appontin
ting
eligi
cer to eligible
pointing1 offi- ^ ^ ^ne appointing or nominating officer shall object to
an eijgib}e named in the certificate, stating that, because
of some physical defect, mental unsoundness, or moral
disqualification, particularly specified, said eligible would
be incompetent or unfit for the performance of the duties
of the vacant position, and if said officer shall sustain such
objection with evidence satisfactory to the commission, the
commission may certify the eligible on the register who is
in average percentage next below those already certified
in place of the one to whom objection is made and sustained.
5. Certifications for appointment of persons for service
in, or for direct detail from, any Department or office in
Washington, D. C., shall be so made as to maintain, as
nearly as the conditions of good administration will war-
rant, the apportionment of such appointments among the
several States and Territories and the District of Columbia
11?011 ^De k&sis °^ population: Provided, That appoint-
ment. ments to the following-named positions shall not be so
apportioned, viz: * * * those in the post quarter-
master's office, * * * those of page, messenger boy,
apprentice, and student, * * * And provided further,
That a person who has been or may be separated from a
classified position by reason of a necessary reduction of
29Ai899nded May ^orce' or by reason of an appointment to a position not in
waiver of evi- the classified service, may be reinstated under the provi-
dence of citizen- ...
ship. sions of Rule IX without filing new evidence of citizenship,
and said appointment shall be charged to the apportionment
of the State in which citizenship was claimed before said
separation, unless a new citizenship is claimed, in which
case the citizenship shall be proved in the manner required
for original appointment.1
to
FoPwStmc!ass ?. Within any part of the service to which promotion
thereto.cepti°n regulations have been, or may hereafter be, applied, certifi-
cation of those eligible to original appointment shall not be
made for filling a vacancy in a position above the lowest
class in any grade, whenever there is any person eligible
and willing to be promoted to said vacancy : Provided, That
a vacancy in any position requiring the exercise of tech-
Amended May 29, 1899.
MILITARY LAWS OF THE UNITED STATES. 1109
nical or professional knowledge may be filled by original
appointment.
8. When two or more eligibles on a register have the
same average percentage, preference in certification shall percentage.
be determined by the order in which their applications
were filed.
9. For filling vacancies in positions outside of the Dis- beVfinedCiby
trict of Columbia and * * * the depot quartermaster's tricts-
ofliee, * * * the territory of the United States shall
be arranged in such sections or districts as the commis-
sion may determine; and an eligible shall be certified, in
his order, to vacancies in the section or district in which he
resides, and upon his written request to vacancies in any
one or more of the other sections or districts : * * *
10. In any part of the service in which the employ ment
of substitutes is not prohibited by law there may be certi-
fied and appointed, in the manner provided for in this rule,
only such number of substitutes as are actually needed for
the performance of substitute duty.
11. In any part of the service in which substitutes are Appointment
•f * and promotion of
employed certifications of those eligible to original appoint- substitutes.
ment shall be made for filling vacancies in substitute posi-
tions only, and vacancies in regular positions shall be filled
by the appointment or promotion thereto of substitutes in
the order of their original appointment as substitutes
whenever there are substitutes of the required sex who
are eligible and willing to be so appointed or promoted.
Substitutes so appointed or promoted shall, however, be
subject to the provisions of these rules relating to proba-
tion and permanent appointment.
13. Whenever there are no names of eligibles upon a
register for any grade in which a vacancy exists and the emer&ency-
public interest requires that it must be filled before eligi-
bles can be provided by the commission, such vacancy may,
subject to the approval of the commission, be filled by
appointment without examination and certification for such
part of three months as will enable the commission to pro-
vide eligibles. Such temporary appointment shall expire up^f temporary
by limitation as soon as an eligible shall be provided, and aPP°intments-
no person shall serve longer than three months in any one
year under such temporary appointment or appointments
unless by special authority of the commission previously
obtained. Said year limitation shall commence from the
1110 MILITARY LAWS OF THE UNITED STATES.
date of such first appointment: Provided, That whenever
an emergency shall arise requiring that a vacancy shall be
filled before a certification can be issued and an appoint-
ment made thereto in the manner provided in these rules,
such vacancy may be filled without regard to the provi-
sions of these rules for such part of thirty days as may be
required for the issuance of a certificate and the execution
of the necessary details of an appointment thereto in
accordance with said provisions. Such appointment shall
in no case continue longer than thirty days.
raryhanppo?nt- 14. Whenever a temporary appointment shall be made
mentmustcease- through certification from the eligible registers of the
commission in the manner provided in these rules, such
temporary appointment shall in no case continue longer
than six months and shall expire by limitation at the end
of that period.
15. All persons serving under temporary appointments
made jJe/inalat the date of the approval of this section may be perma-
nepr6muigatednently appointed, in the discretion of the proper appoint-
May29, 1899. -^ ofgcer? an(j the special rule approved January 20,
1899, relative to temporary appointments in the Navy
Department, is hereby rescinded.1
RULE IX.
menetsnwifhien ^ vacancy in any position which has been, or may here-
one year. after be, classified under the civil-service act, may, upon
requisition of the proper officer and the certificate of the
commission, be filled by the reinstatement, without exami-
nation, of any person who, within one year next preceding
the date of said requisition, has, through no delinquency
or misconduct, been separated from a position included
within the classified service at the date of said requisition
and in that department or office and that branch of the
which ^e^state0- serv^ce *n which said vacancy exists: Provided, That for
may be original entrance to the position proposed to be filled by
reinstatement there is not required by these rules, in the
opinion of the commission, an examination involving
essential tests different from or higher than those involved
in the examination for original entrance to the position
formerly held by the person proposed to be reinstated:
prefer- And provided further , That subject to the other condi-
enAmen§edlMay ^ons °^ these rules, any person who has served in the
29, 1899. military or naval service of the United States in the late
1 Added May 29, 1899.
MILITARY LAWS OF THE UNITED STATES. 1111
war of the rebellion or in the Spanish-American war and
was honorably discharged therefrom, or the widow of any
such person, or an army nurse of either of said wars, and
any person who has been separated from the service by
reason of the discontinuance of the free-delivery service i5^i™0eonded Jan*
at any post-office, or a reduction of force specifically re-
quired by law, may be reinstated without regard to the
length of time he or she has been separated from the
service:
And provided further, That any person dismissed
the service upon charges of delinquency or
may be reinstated, subject to the other conditions of these
rules, without regard to the one-year time limit of this
rule, upon the certificate of the proper appointing officer
that he has thoroughly investigated the case and that the
charges upon which the dismissal was based were not
true.1
RULE X.
Within that part of the civil service of the United Transfers.
States which has been, or may hereafter be, classified
under the civil-service act, transfers shall be governed as
follows:
1. A person in any Department or office may be trans- sa^aJsfeD8e *£
f erred within the same Department or office and the same ment office, or
branch of serv-
branch of the service upon any test of fitness, not disap- ice.
proved by the commission, which may be determined
upon by the appointing officer, subject to the limitations
of the provisos of section 2 of this rule.
2. A person who has received absolute appointment Transfers from
Department,
may be transferred, without examination, from any office, or branch
J J of service.
Department, office, or branch of the service, upon requi-
sition and consent of the proper officers, and the certifi-
cate of the commission: Provided, That no transfer shall
be made of a person to a position within the same Depart-
ment or office and the same branch of the service, or to a
position in another Department, office, or branch of the
service, if from original entrance to such position said
person is barred by the age limitations prescribed therefor, Age iimita-
/ ' K ' tions governing
or by the provisions regulating apportionment, but the transfers,
provisions in relation to apportionment shall be waived
upon the certificate of the appointing officer that the
transfer is required in the interests of good administra-
1 Amended May 29, 1899.
1112 MILITAKY LAWS OF THE UNITED STATES.
aerxeai?e-tion: And provided further, That transfers shall not be
fenfed for trans" made without examination, provided by the commission,
to a position for original entrance to which, in the judg-
ment of the commission, there is required by these rules
an examination involving essential tests different from or
higher than those involved in the examination required
for original entrance to the position from which transfer
Pr°P°se(l; but a person employed in any grade shall not
ex" ^ecause of such employment be barred from the open
competitive examination provided for original entrance to
any other grade.1
thIrofficeroffTS 3t Upon requisition of the proper officer and the cer-
President. tificate of the commission, transfer may be made without
examination from the office of the President of the United
States, after continuous service therein for the two years
next preceding the date of said requisition, to any position
classified under the civil-service act, if in said position
there is required, in the judgment of the commission, the
performance of the same class of work that is required
to be performed in the position from which transfer is
proposed.
toTbenmade ex- ^' Transfer shall not be made from an excepted position
ception. ^o a position not excepted: Provided, That a person hold-
ing a position which is excepted, but which he was holding
at the time of its classification, or which he entered or held
in accordance with the provisions of these rules at a time
when said position was subject to competitive examination,
and has since served continuously therein, or a person
holding a position which is excepted, but which he entered
prior to the President's order of November 2, 1894, and
has since served continuously therein, may, subject to the
other conditions and provisions of this rule, be transferred
to a position not excepted.
NO transfer 5. Transfer shall not be made from a position not classi-
from unclassi- r
fled to classified fied under the civil-service act to a classified position: Pro-
position, with
exception. wded, That a person who, by promotion or transfer from
a classified position, has entered an unclassified position in
any part of the executive civil service other than a posi-
tion of mere laborer or workman, or to serve under the au-
thority of the General Government as a civilian in the
insular possessions under the control of the United States,
and has served continuously therein from the date of said
promotion or transfer, may be transferred from said un-
classified position to the position from which he was so
1 Amended May 29, 1899.
MILITARY LAWS OF THE UNITED STATES. 1113
transferred or to any position to which transfer could be
made therefrom.1
6. Transfer shall not be made from a position outside
the District of Columbia to a position within the District g
of Columbia except upon the certificate of the Commis- c°lumbia-
sion, subject to the other conditions and provisions of
this rule.
7. Any person who has been transferred from a classi-
fied position to another classified position may be retrans-
f erred to the position in which he was formerly employed, tlon*
or to any position to which transfer could be made there-
from, without regard to the limitations of this rule.
8. All transfers herein authorized shall be made only certificates for
after the issuance by the commission of the certificates
therefor, except those which may be specifically exempted
from such condition by regulation of the commission.
9. Whenever a person is proposed for transfer from one Facts to be set
forth in applica-
branch of the service to another branch of the service, and tion for transfer.
from a part of the service not within the provisions regu-
lating apportionment to a part of the service within said
provisions, and the transfer is one which, under the pro-
visions of this rule, may be allowed without examination,
such person shall be required, precedent to his transfer, to
file a statement under oath setting forth the same facts
accompanied by the same certificates or vouchers relating
to residence as may be required in an application for
examination.
RULE XI.
1. In pursuance of the requirements of section 7 of the Prom°tions.
civil-service act, competitive tests or examinations shall,
as far as practicable and useful, be established to test fitness
for promotion in any part of the civil service of the United
States which has been, or may hereafter be, classified under
the civil-service act.
2. Regulations to govern promotions shall be formulated commission to
r,i • «, T .., ,1 i , „ formulate details
by the commission after consultation with the heads of regulating pro-
the several departments, bureaus, or offices. It shall be
the duty of the head of each department, bureau, or office,
when such regulations have been formulated, to promul-
gate the same, and any amendments or revocations thereof
shall be approved by the commission before going into
effect.
1 Amended March 16, 1900.
1114 MILITARY LAWS OF THE UNITED STATES.
commission shall, upon the nomination of the
of promotion, head of each department, bureau, or office, designate and
select a suitable number of persons, not less than three, in
said department, bureau, or office, to be members of a
board of promotion. In the departments, bureaus, or
offices in Washington, and in all other offices, the members
of any board of promotion shall not all be adherents of one
political party when persons of other political parties are
available and competent to serve upon said board.
promotions be- 4. Until the regulations here authorized have been
fore adoption of , „ . , . ,
regulations. approved for any department, bureau, or office in which
promotion regulations approved by the commission are
not in force, promotions therein may be made from one
class to another class which is in the same grade, and from
one grade to another grade, upon any test of fitness not
disapproved by the commission, which may be determined
when exam- upon by the promoting officer: Provided* That no promo-
inations are re- , .J . , •
quired for pro- tion of a person shall be made, except upon examination
provided by the commission, from one class to another
class, or from one grade to another grade, if for original
entrance to said class or grade to which promotion is pro-
posed there is required by these rules an examination in-
volving essential tests different from or higher than those
involved in the examination required for original entrance
to the class or grade from which promotion is proposed:
And provided further , That no promotion of a person shall
^e made, except upon examination provided by the com-
mission, to a position in which, in the judgment of the
commission, there is not required the performance of the
same class of work or the practice of the same mechanical
trade which is required to be performed or practiced in
the position from which promotion is proposed; but a
person employed in any grade shall not, because of such
employment, be barred from the open competitive exami-
nation provided for original entrance to any other grade:
_Age \imit&- And provided further, That no promotion of a person
shall be made to a class or grade from original entrance
to which such person is barred by the age limitations pre-
scribed therefoL or by the provisions regulating appor-
Amendmentoftionment: And provided further. That nothing contained
Jan. 29, 1900. . . ,
in this rule or in any regulation made in pursuance thereof
shall be so construed as to prevent an appointing officer,
in his discretion, from promoting a person who served in
the military or naval service of the United States in the
late war of the rebellion or in the Spanish- American war,
MILITARY LAWS OF THE TTNTTED STATES. 1115
and who was honorably discharged therefrom, who has
been reinstated in the service in a grade or position below
that from which he was separated to a grade or position
no higher than that from which he was separated.1
RULE XII.
1. In pursuance of the provisions of section 2 of the ti<j£
civil-service act, every nominating or appointing officer in Fj^nTsTe d° to
the executive civil service of the United States shall furnish commission.
to the commission a list of all the positions and employ-
ments under his control and authority, together with the
names, designations, compensations, and dates of appoint-
ment or employment, of all persons serving in said posi-
tions or employments; said list to be arranged as follows:
(a) Classified positions not excepted from examination;
(b) classified positions excepted from examination; (c)
unclassified positions.
2. Every nominating or appointing officer in the execu-ch^nj>egrinsserv-
tive civil service shall report in detail to the commission,
in form and manner to be prescribed by the commission,
all changes, as soon as made, and the dates thereof, in the
service under his control and authority, setting forth among
other things the following: The position to which an
appointment or reinstatement is made; the position from
which a separation is made, whether the same was caused
by dismissal, resignation, or death; and the position from
which and the position to which a transfer or promotion is
made; the compensation of every position .from which or
to which a change is made; the name of every person
appointed, reinstated, promoted, transferred, or separated
from the service; and every failure to accept an appoint-
ment and the reasons therefor.
RULE XIII.
The officers and employees in all branches of the classi-
fied service of the United States, for the purposes of these
rules, shall be arranged in the following classes unless
otherwise provided by law:
Class A. All persons receiving an annual salary of less
than $720, or a compensation at the rate of less than $720
per annum.
Class B. All persons receiving an annual salary of $720
or more, or a compensation at the rate of $720 or more,
but less than $840 per annum.
1 Amended January 29, 1900.
1116 MILITARY LAWS OF THE UNITED STATES.
Class C. All persons receiving an annual salary of $840
or more, or a compensation at the rate of $840 or more,
but less than $900 per annum.
Class D. All persons receiving an annual salary of $900
or more, or a compensation at the rate of $900 or more,
but less than $1,000 per annum.
Class E. All persons receiving an annual salary of $1,000
or more, or a compensation at the rate of $1,000 or more,
but less than $1,200 per annum.
Class 1. All persons receiving an annual salary of $1,200
or more, or a compensation at the rate of $1,200 or more,
but less than $1,400 per annum.
Class 2. All persons receiving an annual salary of $1,400
or more, or a compensation at the rate of $1,400 or more,
but less than $1,600 per annum.
Class 3. All persons receiving an annual salary of $1,600
or more, or a compensation at the rate of $1,600 or more,
but less than $1,800 per annum.
Class 4. All persons receiving an annual salary of $1,800
or more, or a compensation at the rate of $1,800 or more,
but less than $2,000 per annum.
Class 5. All persons receiving an annual salary of $2,000
or more, or a compensation at the rate of $2,000 or more,
but less than $2,500 per annum.
Class 6. All persons receiving an annual salary of $2,500
or more, or a compensation at the rate of $2,500 or more
per annum.
Provided, That this classification shall not include per-
sons appointed to an office by and with the advice and
consent of the Senate, nor persons employed as mere la-
borers or workmen; but all positions whose occupants are
designated as laborers or workmen and who were, prior to
May 6, 1896, and on June 10, 1896, regularly assigned to
work of the same grade as that performed by classified
employees shall be included within this classification.
Hereafter no person who is appointed as a laborer or
workman without examination under the civil service
rules shall be assigned to work of the same grade as that
performed by classified employees. l
1This rule appeared originally as a War Department classification. It was extended
to the civil service generally by order of the President dated May 29, 1899.
INDEX.
[The references are to paragraphs unless pages are indicated. Articles of war are indicated by
their numbers, the letters A. W. following the number of the article.]
Absence (see Leaves of Absence):
leaves of, to officers, 826-828.
pay during, 826-829.
without leave, 1393, 32 A. W.
Accepting Bribe, 1565. (See Bribe.)
Accountability (see Accounts, and Property Ac-
countability) :
money, 184-189, 632, 636-643.
ordnance, 1172-1176.
property, 1632-1636.
signal property, 1229.
volunteer officers, 540.
Accountant. (See Expert Accountant.)
Accounting, 632-635.
failure to render accounts, 648.
revision, 642.
Accounting Officers (see Accounts, and Treasury
Department):
advance decisions, 627.
assignment of claims, 234.
auditors, 194-214.
books, papers, etc., accessible to, 108.
certificate of property charges, 1633, 1634.
claims, 202, 206, 219-224, 235-244, 362-368.
compromise of claims, 231.
Comptroller of the Treasury, 190-193.
copies of contracts for, 1571.
powers of attorney, 234.
prosecution of claims, 235-244.
purchase of claims, 232.
rejected appointments, lists of, lla.
rendition of accounts to, 185, 187.
set-off, 233.
States, claims of for war expenses, 223-230.
suits for recovery of money, 643.
Accounts (see Accountability, Accounting Officers,
and Treasury Department) :
clothing, 751.
Comptroller of the Treasury, 190-193.
delinquent disbursing officers, 188.
examination, 195, 196.
fiscal year, 184, 635.
forms, 633.
prescribed by Comptroller, 191.
itemized by appropriations, 637.
line officers, settlement, 215.
monthly, to be rendered, 185.
outstanding over three years, 312.
overpayments, 217.
paymasters, for bounties, etc., 216, 217.
Accounts — Continued.
preservation, 204.
re-examination, 199, 200.
rendition, 636-641.
reopening of settled, forbidden, 206.
revision, 642.
rules for keeping, 634.
separate heads of appropriation, 186.
settlements of, conclusive, 201.
transcripts of, by auditor, 205.
transmission, 187, 638-641.
Acquisition of Lands ( see Lands, and Public Lands) :
assent of States, 1595.
authority for, 1594.
condemnation, 1597-1599.
examination of titles, 1593.
releases, 1596.
sites for fortifications, 1599.
Acting Hospital Stewards, 914, 920, 924. (See Hos-
pital Stewards. )
Additional Paymasters, 793, 794.
Adjutant- General:
rank, 662, 663.
Adjutant- General's Department (see Adjutant-
General's Office):
composition, 662.
details, 665, 666.
duties, 667.
examinations for promotion, 664.
historical note, p. 257.
organization, 662; p. 1053.
promotions, 664.
recruiting service, 669-679.
returns, 668.
Adjutant-General's Office (see Adjutant-General's
Department) :
clerical force, 134.
Adjutants:
battalion, 1449.
regimental, 1419, 1423, 1445, 1447.
squadron, 1425.
Administration of Oaths, 49-51. (See Oaths.)
Administrators :
liability of, 246.
Admiral:
relative rank, 564.
Advances of Funds, 617, 618. (See Disbursing
Officers, and Funds.)
Advertising. (See Contracts.)
in District of Columbia, 79, 81.
1117
1118
INDEX.
Agents (see Disbursing Agents, and Indian Agents) :
disbursing, 291-295a.
Aids:
appointment, 556, 557.
brigadier-generals, 557.
lieutenant-general, 556.
major-generals, 557.
military secretary, 556.
Alabama:
rivers in, navigable waters, 1095.
Alaska:
military telegraph lines in, 1231.
Aliens. (See Citizenship, and Naturalization.)
Allotments of Pay by Enlisted Men, 871-875.
Allowances :
baggage, 720, note.
clothing, 749, 762.
commutation of quarters, 830-835.
forage, 740, 741.
fuel, 738 note; 740.
Indian scouts, 506.
native troops, 502-505.
quarters, 738, note.
restriction on, 817.
volunteers, 527, 528.
Altering Clothing (see Clothing) :
cost, 756, 757.
American National Bed Cross, pp. 1044-1047.
A in in ii n 11 i on :
selling, 1648.
wasting, 16 A. W.
Antletam Battlefield, 2415-2422.
appropriation, 2418.
condemned cannon, carriages, etc., 2420,2421.
Harpers Ferry, marking lines of battle at,
2419.
locating lines of battle, 2415.
marking lines of battle, 2417.
South Mountain, lines of battle, 2419.
superintendent, 2422.
tablets, 2416.
Aqueduct. (See Washington Aqueduct.)
Aqueduct Bridge:
rules for use of, 995.
Washington . ( See Engineer Department. )
Appointments In Military Service:
commissions, 273.
how made, 1454.
in line of Army, 1454.
Marine Corps, 421-424.
notification of, 11.
recess, 8, 9.
volunteer forces, 521.
Appointments to Office, 7-9 (see President, Civil
Service, and Recess Appointments):
preference to honorably discharged soldiers,
etc., 143.
recess, 8, 9, 163, 164.
rejected, lists of, lla.
temporary, restriction on, 18, 19.
Appropriations (see Treasury Department):
amount of, how determined, 275, 623.
application, 271,620.
balances, application of, 279-282.
balances, disposition of, 624.
contingent, restriction on, 274.
contracting beyond, 659.
Appropriations — Continued .
expenditures not to exceed, 272.
expenses of commissions and inquiries, 273.
fiscal year, 184.
permanent, 276.
restriction on expenditures, 619.
statement of, in estimates, 268.
statements of prior, in estimates, 208.
unexpended, application of, 279-282.
Armories (see Ordnance Department):
annual accounts of expenditures, 1193.
bonds, by whom given, 1192.
enticing away workmen, etc., 1197.
establishment, 1190.
exemption of employees from jury duty, 1190.
inventions, expenditures on, prohibited, 1200.
leave of absence to employees, 11%.
misconduct of employees, 1198.
magazine small arms, 1202.
officers, 1190.
organization, 1190.
pay of officers, clerks, etc., 1191, 1192.
Arms (see Armories, Militia, and Ordnance Depart-
ment) :
damages to, etc., 897, 1638.
issues to Executive Departments, 1204.
issues to Territories, 1780, 1781.
losing, spoiling, etc., 1647.
magazine, manufacture, 1202.
replacing ordnance issued to States, 1203.
selling, losing, etc., 1649.
Army (see Regular Army, and Volunteer Army):
appointments, pp. 1060-1062.
artillery corps, 1429-1444.
cavalry, 1419-1428.
commander in chief, 2.
composition, 500-508.
details, p. 1060.
engineer troops, 1452.
enlisted strength, 507, 508.
enlisted strength of, restriction, p. 1064.
government of, in the field, pp. 1074-1078.
increase of 1899, 515, 516.
increase of 1901, how effected, 1454.
Indian scouts, 506.
infantry, 1445-1451.
line of, 962, 1419-1429, 1445-1451; pp. 1048, 1049,
1061. ( See Line of the Army. )
maximum strength, 1453.
native troops, Philippine Islands, 501-604;
p. 1064.
Porto Rico, 505; p. 1065.
payments to troops, 800-804.
peace establishment, 499-508.
promotions, p. 1060.
reorganization of, act for, pp. 1048-1066.
restriction on enlisted strength, 507, 508; p. 1064.
strength of, restriction, p. 1064.
strength, enlisted, 507, 508.
volunteer forces, 543, 545, 546.
vacancies in line, how filled, 1454.
war establishment, 509-514.
Army Medical Museum, 940.
Army Register:
distribution, 490, 491.
House of Representatives, furnished to, 491.
lineal rank to appear in. 493.
INDEX.
1119
Army Register— Continued.
pay, schedule of, to appear, 492.
rank of officers to appear, 493, 494.
Senate, furnished to, 490.
volunteer rank, 494.
Army Regulations:
authority to make, 487, 488.
codification, 489.
publication, 489.
Army Service Men, 1509-1511.
Army Transports (see Transportation):
rations, 770.
Army War College, 1514.
Arraignment, 1808; 89 A. W. (See General Courts-
Martial.)
Arrears of Business (see Reports):
reports, 53, 88.
Arrest:
commissioned officers, 1782, 1784, 1785.
intruders on Indian reservations, 2004-2008.
Arsenals (see Armories) :
abolishment of, by Secretary of War, 1194.
Articles of War (see Courts-Martial, and Military
Tribunals) :
absence from parade, etc., 33 A. W.
absence without leave, 32 A. W.
accountability for arms, etc., 10 A. W.
accouterments, losing, spoiling, etc., 17 A. W.
accuser or prosecutor, 72, 73 A. W.
accused, arraignment, 89 A. W.
counsel, 90 A. W.
copy of charges, 71 A. W.
entitled to copy of record, 114 A. W.
affirmation, 92 A. W.
alarms, false, 41 A. W.
allowing duels, 27 A. W.
ammunition, wasting, 16 A. W.
application to Marine Corps, 446.
application to marines, 445.
approval of sentences, 104-109, 111 A. W.
arrest of officers, 65 A. W.
duration of, 70, 71 A. W.
release, 70, 71 A. W.
behavior of members, 87 A. W.
branding, etc., 98 A. W.
camp, retainers to, 63 A. W.
challenges—
to duels, 26 A. W.
to members, 88 A. W.
charges, copy to be furnished accused, 71 A. W.
civil authority, delivery of offender to, 59 A. W.
command when different corps join, 122 A. W.
commanders not to be interested in sale of vict-
uals, etc., 18 A. W.
commanding officer, disrespect to, 20 A. W.
conduct prejudicial to good order, etc., 62 A. W.
conduct unbecoming an officer and gentleman,
61 A. W.
confinement of enlisted men, 66-70 A. W.
confirmation of sentences, 104-109, 111 A. W.
Congress, disrespectful words concerning, 19
A. W.
contempts of court, 86 A. W.
contemptuous words, 19 A. W.
continuances, 93 A. W.
courts of inquiry, 116-121 A. W.
authentication of proceedings, 120 A. W.
Articles of War— Continued,
courts of inquiry— continued.
composition, 116 A. W.
constitution, 115 A. W.
evidence, proceeding as, 121 A. W.
oaths of members and recorder, 117 A. W.
opinion, when furnished, 119 A. W.
record as evidence, 121 A. W.
witnesses, 119 A. W.
cowardice, 42 A. W.
crimes during war, insurrection, etc., 58 A. W.
damages to stores, 15 A. W.
death sentences, 47, 96, 105, 111 A. W.
deceased officer, effects, 125, 127 A. W.
deceased soldier, effects, 126, 127 A. W.
delivery of offender to civil authority, 59 A. W.
depositions, 91 A. W.
desertion, 47-51 A. W.
advising, 51 A. W.
limitation in, 103 A. W.
penalty, 47; 48 A. W.
resignation, 49 A. W.
destruction of property, 55 A. W.
discharges, 4 A. W.
discipline-
conduct prejudicial to, 62 A. W.
maintenance of, on march and in quarters
64-56 A. W.
dismissal of officer, 99, 106, 107, 111 A. W.
disrespectful words, 19, 20 A. W.
disrespect to commanding officer, 20 A. W.
divine service, misconduct at, 52 A. W.
drunkenness on duty, 38 A. W.
duels, 26-28 A. W.
duty, drunkenness on, 38 A. W.
hiring, 36 A. W.
embezzlement, etc., 60 A. W.
enacting clause, sec. 1342 R. S., p. 964.
enemy, corresponding with, 4£ A. W.
relieving, 45 A. W.
enlisting without discharge, 50 A. W.
enlistments unlawful, penalty, 3 A. W.
false alarms, 41 A. W.
false certificates, 13 A. W.
false muster, 5, 14 A. W.
false returns, 8 A. W.
field-officers courts (see Regimental Courts-
Martial), 80, 83 A. W.
approval of proceedings, 104, 109 A. W.
composition, 80 A. W.
constitution, 80 A. W.
jurisdiction, 80, 83 A. W.
limits of punishment, 83 A. W.; 1838; p. 1067.
pardon and mitigation, 112 A. W.
sentences, sec. 1342 R. S., p. 964, and 83 A. W.
flogging, 98 A. W.
fraud, embezzlement, etc., 60 A. W.
furlough, 11 A. W.
garrison courts-martial (see Summary Courts),
82 A. W.
approval of proceedings, 104, 109 A. W.
behavior of members, 87 A. W.
composition, 82 A. W.
constitution, 82 A. W.
judge-advocate, 74, 90 A. W.
jurisdiction, 82, 83 A. W.
limits of punishment, 83 A. W.; 1838; pp. 965,
1067.
1120
INDEX.
Articles of War— Continued,
garrison courts-martial — continued.
oaths, 84, 85 A. W.
pardon and mitigation, 112 A. W.
sentences, 83 A. W.; 1838; p. 1067.
general courts-martial, 72, 73 A. W.
approval of sentences, 104-108 A. W.
behavior of members, 87 A. W.
challenges, 88 A. W.
composition, 75-79 A. W.
confinement in penitentiary, 97 A. W.
constitution, 72, 73 A. W.
continuances, 93 A. W.
depositions, 91 A. W.
dismissal of officers, 99, 105, 106, 111 A. W.
execution of sentences, 104-109, 111, 112 A. W.
general officers, sentences respecting, 108
A. W.
inferior in rank, 79 A. W.
judge-advocates, 74, 84, 90 A. W.
limits of punishment, 1838; pp.' 965, 1067.
number of officers, 75 A. W.
oaths, 84, 85 A. W.
order of voting, 95 A. W.
pardon and mitigation, 112 A. W.
proceedings, final disposition, 113 A. W.
suspension of officers' pay, 101 A. W.
voting, 95 A. W.
general officers, sentences respecting, 108 A. W.
good order on march, etc., 54 A. W.
gratification or reward for muster, 6 A. W.
hiring duty, 36 A. W.
horses, losing, spoiling, etc., 17 A. W.
judge-advocates, 74,84,85,90,92,113 A. W.
limitation of prosecution—
in desertion, 103 A. W.
in general, 103 A. W.
limits of punishment, 83 A. W.; 1838; p. 1067.
marines, when subject to, 445.
marking, tattooing, etc., 98 A. W.
members of courts-martial, 75-79 A. W.
military discipline, conduct prejudicial to, 62
A. W.
militia subject to, 2022; 64 A. W.
misbehavior before enemy, 42 A. W.
muster, false, 5, 14 A. W.
musters, 5, 6, 13, 14 A. W.
mutiny, 22, 33 A. W.
National Home, etc., inmates subject to, 2332.
neglect of duty, 62 A. W.
neglects, etc., prejudicial to military discipline,
62 A. W.
oath of enlistment, 2 A. W.
oaths, 2, 84, 85, 92 A. W.
enlistment, 2 A. W.
judge-advocate, 85 A. W.
member, 84 A. W.
witness, 92 A. W.
oaths, profane, 53 A. W.
officer and gentleman, conduct unbecoming, 61
A. W.
officers to keep good order in commands, 54
A. W.
officers to subscribe to, 1 A. W.
officers, triable by general courts-martial only,
79 A. W.
one mile from camp without leave, 34 A. W.
Articles of War— Continued,
order to be kept in quarters and on the march,
54 and 55 A. W.
pardon and mitigation, 112 A. W.
penitentiaries-
confinement in, 97 A. W.
sentences to, 97 A. W.
persons subject to —
Army of the United States, 1,2,64 A. W.
inmates National Home, 2332.
inmates Soldiers' Home, 2283.
marines serving with land forces, 78 A. W.
militia, in time of war, 64 A. W.
persons serving with armies in field, 63 A. W.
Regular Army, 1, 2 A. W.
retainers to camp, 63 A. W.
retired enlisted men, 1380, note.
retired officers, 1319.
volunteers, 64 A. W.
pleas, 89 A. W.
President, contemptuous or disrespectful words
concerning, 19 A. W.
prisoner —
charges against, 66 A. W.
confinement of, 66-69 A. W.
escape of, 69 A. W.
receiving by provost-marshal, etc., 67 A. W.
release of, 69 A. W.
report of, 68 A. W.
profane oaths, 53 A. W.
property —
captured, 9 A. W.
returns, 10 A. W.
publication of—
Articles of War, 128 A. W.
sentences, 100 A. W.
punishment, limits of, 83 A. W.; 1838; p. 1067.
punishments prohibited, 98 A. W.
quarrels, frays, etc., 24 A. W.
quarters, lying out of, 31 A. W.
quelling mutiny, 23 A. W.
quitting guard, 40 A. W.
rank of regular and volunteer officers, 122, 123
A. W.
read, once in six months to regiments, etc., 128
A. W.
records of general courts-martial forwarded to
Judge- Advocate-General, 113 A. W.
party entitled to copy, 114 A. W.
recruits, articles to be read to, 2 A. W.
redress of wrongs-
enlisted men, 30 A. W.
officers, 29 A. W.
regimental courts-martial (see Field - Officers,
Courts), 81 A. Vt.
appeals from, 30 A. W.
approval of proceedings, 104, 109 A. W.
behavior of members, 87 A. W.
composition, 81 A. W.
constitution, 81 A. W.
judge-advocate, 74,81,84,85,90 A. W.
jurisdiction, 81, 83 A. W.
limits of punishment, 83 A. W.; 1838; p. 1067.
oaths, 84, 85 A. W.
pardon and mitigation, 112 A. W.
redressing wrongs, 30 A. W.
sentences, 83 A. W.; 1838; p. 1067.
INDEX.
1121
Articles of War— Continued,
regimental returns, 7 A. W.
relieving enemy, 46 A. W.
report of prisoners, 68 A. W.
reproachful speeches, 25 A. W.
retainers to camp, 63 A. W.
retreat, failing to retire to camp at, 35 A. W.
returns, false, 8 A. W.
regimental, 7 A. W.
safeguard, forcing of, 57 A. W.
second trial for same offense, 102 A. W.
sentences, 96-101, 104-107, 111, 112 A. W.
approval and confirmation, 104-109 A. W.
death, 47, 96, 111 A. W.
dismissal of officer, 99, 107, 111 A. W.
flogging, 98 A. W.
general officers, 108 A. W.
limits of, 83 A. W.; 1838; pp. 965, 1067.
pardon and mitigation, 112 A. W.
penitentiary, 97 A. W.
publication, 100 A. W.
suspension of, 111 A. W.
suspension of pay, etc., 101 A. W.
sleeping on post, 39 A. W.
Soldiers' Home, 2283.
soldiers subject to, pp. 964, 966.
spies, sec. 1343 R. S.; p. 1026.
standing mute, 89 A. W.
stores captured, 9 A. W.
striking superior officer, 21 A. W.
surrender, compelling of, 43 A. W.
suspension of officers' pay, 101 A. W.
suspension of sentence, 111 A. W.
troops, Articles of War, to be read to, 128 A. W.
troops, subject to Articles of War, 64 A. W.
twice in jeopardy, 102 A. W.
victuals, sale of, commanding officers not to be
interested in, 18 A. W.
violence to persons bringing in provisions, 56
A. W.
voting, order of, 95 A. W.
watchword, disclosure of, 44 A. W.
witnesses-
affirmation, 92 A. W.
attendance, 1810.
oath, 92; 118 A. W.
wrongs, redress of, 29; 30 A. W.
officers, 29 A. W.
soldiers, 30 A. W.
Artificial Limbs:
allowance, 942.
commutation, 944-946.
renewal, 943.
transportation to procure, 947-949.
trusses, 950-952.
Artillery (see Artillery Corps, and Coast Artillery):
barracks for coast, 735.
coast, 1430.
field, 1430.
horses, purchases of, 730.
Artillery Corps (see Artillery, and Coast Artillery) :
bands, 1441.
barracks for coast, 736.
coast, 1430.
coast artillery, 1437, 1438.
companies, 1437, 1438.
composition, 1431.
details, 1434.
22924—08 71
Artillery Corps— Continued.
electrician sergeants, 1443.
field artillery, 1430, 1439, 1440.
gunners, increased pay, 1444.
horses, purchases of, 730.
increase of, how effected, 1433.
officers on one list, 1432.
organization, 1429; p. 1049.
restriction on enlisted force, 1442.
veterinarians, 1435, 1436.
Artillery School, 1516, 1517.
Artisans, extra-duty pay, 742, 745.
Assignment of Claims, 234. (See Claims.)
Assignments:
pay of enlisted men, prohibited, 898.
pensions, 2235, 2236.
Assistant Secretary of War, 118.
Assistant treasurers, 286.
Atlantic and Pacific Railroad, 2066.
Attorneys:
oath, 235, 236.
powers of, 234, 628.
prosecution of claims, 235-244.
rules respecting, 244.
Attorney -General (see Attorney- Generafs Office,
and Department of Justice) :
cases, conduct of, 340.
counsel, attendance of, 343, 344.
Court of Claims, 362-417.
duties, 332-345.
habeas corpus, 346-361.
land titles, examination of, 334,335.
office, 332.
opinions, 336-339.
procurement of legal services, 342.
publication of opinions, 345.
restriction on employment of legal services, 342.
Attorney-General's Office (see Department of Jus-
tice):
duties, 334-345.
examination of titles, 334, 335.
legal services, 342.
opinions, 337-341.
Auditors (see Accountability, Accounting Officers,
and Accounts):
balances, certificates of, 198.
books, papers, etc., to be accessible to, 214.
decisions reported to Comptroller, 203.
discharge certificates, return of, 218.
duties, 194-214.
funds, requisitions for, 209.
paymasters' accounts, 216, 217.
preservation of accounts, 205.
re-examination of accounts, 199.
re-opening of settled accounts forbidden, 206.
revision of decisions by Comptroller, 203.
settlements of accounts, 201,206.
transcripts of accounts as evidence, 206.
Badges: *
Corps, etc., 1360-1363.
Baggage (see Transportation):
allowance of, 720, note.
transportation of, 720, note.
Bakeries (see Post Bakeries):
purchases for, 714.
Balances (see Appropriations, and Treasury De-
partment) :
unexpended, application, 279-282.
1122
INDEX.
Bands:
artillery corps, 1441.
cavalry, 1424.
infantry, 1448.
Military Academy, 1508.
Banker:
unlawful receipt of money by, 654, 655.
Barracks (see Posts):
coast artillery, 735.
construction, 734.
restriction on expenditures, 737, 1623-1625.
seacoast artillery, 1625.
Battalions, 1445, 1449.
Board of Ordnance and Fortification, 1209-1217.
(See Ordnance Department.)
civilian member, 1213.
composition, 1209-1213.
duties, 1209.
expenditures, 1212.
experiments, 1215, 1216.
per diem to officers, 1217.
restriction on membership, 1214.
right to all inventions, 1216.
tests, 1209,1215,1216.
Bonds (see Disbursing Officers, and Sureties'):
disbursing agents, 295.
disbursing clerks, 24.
disbursing officers, 592-605.
examination, 602,603.
increase, 593.
liability of sureties, 604,605.
officers of armories, 1192.
release of sureties, 604, 605. '
renewal, 602, 603.
security companies as sureties, 594-S01.
Bond- Aided Railroads, 722, 725.
Bookkeeping and Warrants:
division of, 210.
Book of Estimates, 62-78. (See Estimates.)
Books of Prints:
purchases of, 57.
Books of Reference:
purchases of, 58.
Bounty for Enlistments, 677.
Bowman Act (see Court of Claims), 396-402.
Branding Prohibited, 1833.
Brevet Rank (see Brevets) :
date, 1344, 1345.
honorary, 1346.
uniform, 1349.
Brevets (see Brevet Hank):
assignments to command, 566.
assignments to duty, 1347, 1348.
date, 1344, 1345.
increase of pay on, forbidden, 811.
Marine Corps, 428.
power to confer, 1342, 1343.
Bribe (see Bribery):
accepting of, penalty, 657, 658, 1565.
offering, penalty, 1564.
Bribery, 657, 658, 1564, 1565.
Bridge Equipage:
prescribed by Chief Engineer, 971.
Bridges over Navigable Waters, 1114-1117.
Brigadier-General (see Staff Departments):
historical note, p. 203.
relative rank, 564.
Buildings (see Public Buildings, and Public Build-
ings and Grounds) :
restriction on expenditures, 1549.
report of, rented, 73, 74.
sites for, 1524.
Bureau Officers. (See Chiefs of Bureaus.)
Burial (see Deceased Officers) :
deceased enlisted men, 1416-1418.
officers, 1415-1417.
Cadets (see Military Academy):
Age, 1481.
allowances, 1485.
appointments, 1479-1481.
courts-martial for trial of, 1495.
deficiency, 1494.
graduation, 1486-1488.
instruction, 1489-1494.
liability to duty, 1490.
oath, 1483,1484.
organization, 1489.
pay, 1485, 1488.
qualifications, 1481, 1482.
California Debris Commission, 1049-1081.
composition, 1050.
debris fund, 1073-1080.
duties, 1052-1055.
establishment, 1049.
hydraulic mining, 1056-1072.
report, 1055.
State appropriations, 1078-1080.
travel expenses, 1081.
California:
treatment of insane in asylums, 2348.
Camps:
post-offices at, 329-331.
sites for, p. 1064.
Canals (see River and Harbor Works):
regulations prepared by Secretary of War, 1102.
to be posted, 1113.
tolls not to be levied, 1111.
use of, to be regulated by Secretary of War, 1112.
Carts:
purchase of, 729.
Captains (see Rank):
relative rank, 1564.
Captains (Navy):
relative rank, 564.
Cavalry (see Cavalry Regiments, and Native Troops):
bands, 1424.
colored regiments, 1420.
dismounted, 1421.
horses, purchases of, 730, 732.
horses, restriction on number, 732.
increase in strength, 1428.
organization, 1419.
Porto Rican battalion, p. 1065.
regiment, 1419-1423; p. 1048.
regimental staff, 1422-, 1423.
squadron staff, 1425.
troops, 1427.
veterinarians, 1426.
Cavalry and Light Artillery School, 1519.
Cavalry llegiment (see Cavalry):
band, 1424.
colored regiments, 1420.
composition, 1419.
INDEX.
1123
Cavalry Regiment— Continued.
details, 1423.
dismounted service, 1421.
increase in strength, 1428.
organization, 1419.
squadron, 1419, 1425.
staff, 1419, 1423.
troops, 1427.
veterinarians, 1426.
Central Pacific Railroad, 2065.
Certificates of Merit, 1358, 1359.
Certificates of Residence (see Giinl Service], 154.
Challenges:
members of court-martial, 1802; 88 A. W.
to duels, 26-28 A. W.
Chaplains:
age limit in appointments, 1260.
appointments, 1258, 1259; p. 1052.
assignments, 1262.
duties, 1263-1265.
Military Academy, 146.
qualifications, 1260.
reports, 1265.
school teachers, 1264.
Charges and Specifications, 1786. (See General
Courts- Martial. )
Charts (see Maps):
sale of, 140.
Checks (see Drafts, and Pay Department) :
duplicate, 631.
lost, 631.
outstanding, 309-311.
payment, 311.
presentation, 311, 630.
Chlckamauga and Chattanooga National Military
Park:
acquisition of lands, 2357, 2359.
care of park, 2363.
commissioners, appointment, 2360.
duties, 2361.
designation, 2357.
donations of cannon, balls, etc,, 2375.
lands for roads, 2374.
establishment, 2357.
extent, 2356, 2365-2368.
injuries to monuments, trees, etc., 2375.
leases, 2373.
location of troops, 2362.
monuments, 2369-2372.
construction, 2371.
erection, 2370.
location, 2372.
restriction on erection of, 2370.
State, 2369.
preliminary work, 2364.
purchase of lands, 2366-2368.
reduction of area, 2365.
right given for Chattanooga Rapid Transit
Railroad, 2377.
State monuments, 2369.
supervision by Secretary of War, 2358.
Chief Clerks (see Clerks, Executive Departments,
and Executive Departments) :
duties, 21-23.
oaths, 49, 50.
reports, 22,23.
Chiefs of Bureaus (see Heads of Bureaus) :
absence of, performance of duty, 14, 16-19, 121.
Chief of Engineers (see Engineer Department):
annual inventory, 989.
Aqueduct Bridge, rules for use of, 994.
books from Congressional Library, 977.
furniture in Executive Mansion, 988.
Potomac Park, 981-983.
prescribes forms, etc., of pontoons, arms, tools,
etc., 971.
public buildings and grounds, 978-994.
report of public buildings, etc., 987.
Washington Aqueduct, 995-1010.
Washington Monument, 990-992.
Chief of Ordnance (see Ordnance Department) :
duties, 1166-1168.
returns, prescribed by, 1173.
Chief Signal Officer (see Signal Corps, Signal De-
partment, and Signal Office) :
accountability for property, rules for, 1228.
duties, 1227-1229, 1231.
regulations, 1228.
telegraph lines, 1227, 1231.
Christmas Day, 46.
Citizenship (see Naturalization):
allottees of Indian lands, 1892.
children born abroad, 1871.
definition, 1870.
evasion of draft, 1876.
expatriation, 1877.
forfeiture by desertion, 1397, 1398, 1874, 1875.
married women, 1872.
naturalization, 1880-1891.
persons born in Oregon, 1873.
Civil Employees (see Civil Service, and Employees,
Civil):
rations, 771, note.
restriction on employment, 748.
Civil Engineers, 973-975. (See Engineer Depart-
ment.)
Civil Pension Roll!
prohibited, 30.
Civil Rights (see Employment of Military Force):
enforcement, 2051-2065.
Civil Service (see Civil Service Commission):
assessments, political, 172.
contributions, soliciting of, forbidden, 173-177.
commission, 146.
examinations for appointment, 147.
promotion, 150.
family, members of, restriction, 152.
frauds in examination, 149.
intoxicating liquors, users of, barred, 151.
offenses in connection with, 171-179.
recommendations by members of Congress pro-
hibited, 153.
regulations for admission to, by President, 142.
restrictions on appointments, 151-153.
soldiers honorably discharged, preference to,
143.
Civil Service Commission (see Civil Service):
appointment, 146.
chief examiner, 148.
duties, 147.
examinations for appointment, 147.
promotion, 147, 150.
frauds in examination, 149.
1124
INDEX.
Clulins (see Accounting Officers, Treasury Depart-
ment, and Court of Claims):
adjusted in Treasury, 219.
assignments, 234, 628.
compromise of, 231.
disloyal persons, 237.
examination, 202.
false, penalty, 239, 240.
limitation, 230, 238.
officers not to be interested in, 666.
powers of attorney, 234.
property lost, 221.
prosecution of, 235-244.
prosecution of, before Executive Departments,
110-116.
purchase of, or execution, 232.
reference to Court of Claims, 366.
report of, allowed, 220.
reports of, 70.
set-off, 233.
settled, not to be reopened, 206.
States, reimbursement of war expenses, 223-230.
war with Spain, 137.
Clerks, Executive Departments (see Executive
Departments, and Salaries):
appointment, 25.
below fair standard of efficiency, report of, 78.
chief, 21-23.
classification, 32.
department headquarters, 572, 573.
details, 35.
details from outside District of Columbia, 28.
details, reports of, 77.
disbursing, 24.
distribution, 85.
examination, 33.
extra compensation, 40, 41.
incapacitated, restriction, 31.
leaves of absence, 43-45.
payments to, 27.
rates, 38.
reduction in grade, 36, 37.
reduction of force, preference in, 146.
report of, 87.
restriction on appointment, 26, 27.
restrictions on employment, 26-31.
restrictions on salaries, 38-42.
retired officers, forbidden, 1325.
sick leaves, 43, 44.
temporary, 39.
women, employment of, 34.
Clerks and Messengers at Headquarters:
appointment, 573.
assignment, 573.
employment, 573.
number, 572.
pay, 572.
Clothing (see Quartermaster's Department):
allowances, 752.
allowance prescribed by President, 749.
altering, 756, 757.
altering, stoppages for, 891, 892.
balances, 753.
cost of altering, 756, 757.
gratuitous issues, 750.
purchases, 717.
replacing gratuitous issues, 750.
Clothing— Continued.
returns, 751.
sale of, forbidden, 754.
Coast Artillery, 1430, 1437, 1438. (See Artillery, and
Artillery Corps.)
Collectors:
deposits of funds, 299, 300.
to act as disbursing agents, 291.
College Details (see Retired Officers):
active list, details from, 1288, 1289.
issues of ordnance, etc., 1296.
restriction on details, 1288, 1289.
retired list, details from, 1290-1295.
Colleges:
issues of Ordnance and Military Stores to, 12%.
Colonels:
relative rank, 564.
Colored Regiments (see Army) :
cavalry, 1420, 1421.
chaplains, 1264.
infantry, 1446.
Colors (see Flags):
volunteer regiments, 542.
Command:
brevet assignments, 566.
detachments, 561; 122 A. W.
engineer officers, 567.
Medical Department, 913.
medical officers, 568.
militia officers, 563.
pay of, increased, 814, 815.
paymasters, 569.
regular officers, 562.
restrictions on, 562-569.
volunteer officers, 562.
Commander (Nary):
relative rank, 564.
Commander in Chief, 2.
Commanding General:
performance of duties of Secretary of War, 16.
Commercial Statistics, 1107.
Commissions, 1273.
delivery, 10.
expenses of, 273.
Commissioned Officers:
acceptance of civil office, 1332.
additional second lieutenants, 1487.
administration of postmasters' oath, 314, 315.
advances of pay, 812, 813.
aids, 556, 557.
appointments-
cadets, 1267, 1268.
civil life, 1267, note,
enlisted men, 1269.
in volunteers, 521, 530-534.
arrest, 1782, 1784, 1785.
assignments to regiments, 1283.
baggage, allowances of, 720, note.
brevets, 1342-1349.
chaplains, 1258-1266.
civil works, not to be employed on, 1331.
claims for property lost, 221 222.
claims, not to be interested in, 656.
commissions, 1273.
commutation of quarters, 830-836.
cooking, supervision of, 788.
deceased officers, 1339-1341.
INDEX.
1125
Commissioned Officers— Continued.
details to colleges, 1288-12%.
details to the staff, 580-582, 1285.
dismissal of officers, 1328-1330, 1834, 1835.
examinations for promotion, 583-588, 1274-1277.
examination of enlisted men for appointment,
1278-1282.
funeral expenses, 1341. (See Deceased Officers.)
general officers, 555-560.
horses, transportation of, 720, note.
increased pay for foreign service, 816.
higher command, 814, 815.
increased pay in time of war, 513.
Indian agents, details as, 1333, 1903, 1904.
leaves of absence, 1286, 1287.
medals of honor, 1356, 1357.
monthly payments to, 836.
mounted pay, 810.
pay, 807-829.
promotions, 1271, 1272.
quarters in kind, 738.
relative rank, 564.
resignations, 1326, 1327.
retired pay, 824, 825.
retirement, 1297-1305. *
retiring boards, 1306-1325.
sales of subsistence to, 778-784.
service in volunteers, 521, 530-534.
sick leaves, 1286.
supernumeraries, discharge of, 1334.
suspension, 1836.
transfers, 1284.
transportation, 721-725.
transportation in kind, 722-725.
travel allowances, 837-849.
travel pay on discharge, 850, 851, 1336-1338.
witnessing issues of annuities, 1931.
Commodores:
relative rank, 564.
Commutation:
artificial limbs, 944-946.
Commutation of Quarters (see Quarters):
absent officers, 739.
allowance, 830.
duty without troops, 831.
officers detailed abroad, 835.
rates, 832, 833.
temporary absence, 834.
Commutation of Rations, 776, 777, 789, 791.
Company Commander:
property returns, 1640.
Company Cooks (see Cooking):
artillery, 1438, 1440.
bands, 1424, 1441.
cavalry, 1424, 1427.
engineers, 1457.
infantry, 1448, 1450.
pay, 1457.
signal corps, 1224.
Compromise of Claims, 231.
Comptroller of the Treasury (see Accounting
Officers, and Accounts) :
advance decisions, 627.
binding character of decisions, 192.
decisions in advance of payment, 192.
duties, 190-193, 211.
forms of accounts, 191.
Comptroller of the Treasury— Continued.
office, 190.
particular accounts, settlement of, 193.
revision of decisions of auditors, 203.
suits for the recovery of money, 643.
suits to recover balances, 250.
warrants, countersigned by Comptroller, 209.
Confinement:
enlisted men, 1783.
Congress:
franking privilege, 322-325.
journals of, in evidence, 1823.
Consular Records as Evidence, 1824.
Contempt of Court, 1807; 86 A. W. (See General
Courts-Martial.)
Contingent Funds (see Appropriations):
clerical compensation not payable, 55.
expenditures, 54-58.
law books, 68.
military academy, 1506, 1507.
newspapers, 56, 57.
periodicals, 58.
reference books, 58.
reports of expenditure, 59, 60.
restrictions on expenditure, 54-58.
Continuous Service Pay, 869, 870. 1375.
Continuances, 1803; 93 A. W.
Contract Surgeons, 902. ( See Medical Department. )
Con tracts (see Purchases):
advertisements, 1527, 1528.
buildings, erection and repair, 1522.
control of Secretary of War, 1520.
copies for returns office, 1567-1571.
copy for Auditor for War Department, 1571.
execution, 1539-1541.
envelopes for Executive Departments, 328.
general provisions, 1520-1528.
how made, 1526.
land purchases, 1523, 1524.
members of Congress not to be interested in,
178.
not to exceed appropriations, 1623.
officers in connection with, 1558-1566.
preparation, 1539-1541.
preparation and execution, 1539-1541.
river and harbor works, 1104-1106.
stationery, restriction on, 1556.
subsistence, 1552.
unauthorized, prohibited, 1521.
volunteer services, 1525.
Contracting Beyond Appropriation, 659.
Contributions:
change of rank, 174.
political, 172-177.
presents, 179.
requesting, 172-177.
soliciting, 172-177.
Conversion:
evidence, 653.
Cooking (see Company Cooks):
supervision of, by officers, 788.
Cooks. (See Company Cooks.)
Corps Badges:
wearing of, 1360-1363.
Correspondence (see Franking Privilege):
penalty envelopes, 100,320-327.
1126
INDEX.
Court of Claims (see Claims):
acknowledgments, 374.
aliens, 371.
attendance of witnesses, 384
Bowman Act, 396-402.
claims, 363, 366, 369, 370, 396-417.
commissioner to take testimony, 379, 380.
cross-examination of witnesses, 385.
fees of commissioner, 387.
final judgments a bar to jurisdiction, 395.
fraud, effects, 388.
interest on judgments, 392, 393.
judgments, 364, 368, 391, 394, 395.
jurisdiction, 362-366, 396-417.
limitation on jurisdiction, 372.
loyalty of claimant, 376, 377.
new trials, 389, 390.
oaths, 374, 386.
payment of judgments, 391-394.
petition, 375, 376.
private claims before Congress, 303.
procedure, 367, 373-395.
rules of practice, 373.
testimony, how taken, 379, 380, 383.
Tucker Act, 403-417.
witnesses, 378-386.
Courts of Inquiry, 1863-1869.
composition, 1864; 116 A. W.
constitution, 1863; 115 A. W.
oaths, 1865; 117 A. W.
opinion, when given, 1867; 119 A. W.
record, 1868, 1869; 120, 121 A. W.
as evidence, 1869; 121 A, W.
witnesses, 1866; 118 A. W.
Courts-Martlal (see General Courts- Martial):
marine officers, 446.
Military Academy, 1495.
Credit Sales, 764.
Criminal Offenses:
consideration for obtaining office, 178.
political assessments, 172-177.
Cuba:
military occupation of, 2112.
Culvre River:
Missouri, 1097.
Cullum Memorial, 1572.
Cumulative Leaves, 1287.
Dams In Navigable Waters, 1115.
Death Sentences, 1832; 47, 96, 105, 111 A. W.
Debris Commission (see California Debris Com-
mission) :
California, 1049-1081.
Debtors:
discharge of, 248, 249.
Debts Due United States:
priority of, 245-247.
recovery of, 197.
tender, 305-308.
Deceased Officers (see Burial):
effects, 1339, 1340, 1415.
funeral expenses, 1341.
transportation of remains, 1416, 1417.
Decoration Day, 47.
Decorations (see Medals of Honor):
foreign, 1354, 1355.
Deductions of Pay:
commissioned officers, 850-856.
enlisted men, 889-898.
Delinquents In Accounting (see Accounts, and Dig.
bur sing Officers):
reports, 641.
Dental Surgeons, 903, 904.
Department of Justice (see Attorney-General, and
Attorney- General' s Office ) :
injuries to public works, prosecutions for, 1122-
1132.
Departmental Libraries, 109.
Departments. (See Executive Departments. )
Depositions, 1828; 91 A. W. (See Evidence.)
Depositories (see Treasury, and Treasury Depart-
ment) , 289, 290.
Deposits (see Sales) :
proceeds of sales, 611-616.
Deposits In District of Columbia Harbors, 1147-
1150.
Deposits In New lork Harbor, 1134-1146.
Deposits of Pay by Enlisted Men, 879-882.
forfeiture for desertion, 879.
interest, 880. .
repayment, 879, 882.
Depots:
ordnance, 1168.
Deputy Paymasters-General, 800.
Deserters (see Desertion, and .Rewards) :
apprehension, 1407-1409.
enlistment of, prohibited, 1395, 1401, 1402.
Desertion (see Deserters):
aiding, enticing in, 1405, 1406.
evasion of draft, 1399.
forfeiture of bounty land, 1400,
forfeiture of citizenship, 1397, 1398, 1874, 1875.
forfeiture of pension, 1404.
making good time lost, 1396.
offense, 1394; 47 A. W.
persuading, 1405.
removal of charge of, 1241-1253.
statute of limitations in, 1411.
statutory penalties, 1396-1398.
Designated Depositories, 289, 290.
Des Molnes River, Iowa, 1094.
Details (see Army, Commissioned Officers, and En-
listed Men) :
extra-duty, 743, 744.
Details to Colleges (see College Details), 1288-1296.
Details to the Staff (see Staff Departments):
examination, 580.
promotions in line, 582.
return to duty in line, 582.
selection, 580.
term, 581.
Disabilities:
political, removal, 157.
DIsbandment of Military Forces, 535-542.
Disbursing Agents, 291-295a. (See Disbursing
Clerks, and Disbursing Officers.)
bonds, 295.
collectors to act as, 291.
compensation, 290, 294.
special agents, 292.
restriction on compensation, 293.
Disbursing Clerks (see Disbursing Agents, and
Disbursing Officers):
appointment, 24.
bonds, 24.
duties, 24.
salary, 24.
INDEX.
1127
Disbursing Officers (see Accounting Officers, Ac-
counts, and Pay Department) :
accounting, 632-635.
accounts outstanding over three years, 312.
accounts to be itemized, 622.
advances, 617, 618.
advance decisions of Comptroller, 627.
amount of appropriation, determination of, 623.
appropriations, 271-276.
application of appropriations, 620.
assignment of claims, 628.
balances of appropriation, disposition, 624.
balances unexpended, application, 279-282.
bonds, 592.
bribe, accepting of, penalty, 657, 658.
checks, 309-311, 630.
claims, not to be interested in, 656.
contracting beyond appropriation, 659.
counterfeit money, 629.
custodianship of funds, 301-303.
delays in transmission of accounts, 638-640.
delinquencies in accounts, report, 641.
deposits, 299-303, 606-610.
disbursements, 617-624.
drafts, 630.
duty as custodians of funds, 608.
duty as to depositing funds, 299-303.
embezzlement, larceny, etc., 660.
embezzlement, record evidence of, 651.
entries of receipts and disbursements, 621.
evidence of conversion, 653.
exchanging funds, 609, 610.
expenditures, restriction on, 619.
failure to deposit funds, 607, 649, 650.
failure to render accounts, 648.
failure to safely keep public funds, 646, 647.
fiscal year, 184, 635.
forms of accounts, 191,633.
increase of bond, 593.
inspection of disbursements, 625, 626, 685, 686.
legal tender, 305-308.
loaning public money, 645.
outstanding checks, 309-311.
premiums on exchanges, 610.
presentation of drafts, 630.
powers of attorney, 628.
receiving embezzled money or property, 661.
refusal to pay draft, 652.
rendition of accounts monthly, 185, 636-641.
restriction on expenditures, 619.
revision of accounts, 642.
safe-keeping of funds, 606-610.
sales, proceeds of, 611-616.
short payments, 644.
suits for recovery of money, 643.
sureties, 594-605.
transmission of accounts, 157, 638-640.
unlawful depositing of money, 645.
Disbursements (see Disbursing Officers) :
inspection of, 625, 626, 685, 686.
Discharges:
by whom given, 1383; 4 A. W.
certificates of, 1388-1390.
certificate of, duplicate, 1388.
dependency of parent, 1387.
disability, 1385.
dishonorable, 1384, note.
Discharges— Continued.
honorable, 1383.
jurisdiction after dishonorable, 1384.
purchase of, 1386.
travel pay, 850, 851, 887, 888.
without honor, 1384, note.
Discharge Certificate:
return of, to claimant, 218.
Discharged Soldiers:
preference to, in reduction, 37.
Dishonorable Discharge, 1384, note.
Dismissal of Officers, 1328-1330.
Distress Warrants, 251-264.
contents, 252.
conveyances of land, 257*
execution, 253, 254, 262.
extent of application, 260
failure to account, 259.
injunction to stay execution, 262.
lands, sale of, 256.
levy to be a lien, 255.
postponements, 261.
procedure, 263.
rights of United States reserved, 264.
District Attorneys:
Prosecution of claimants of false claims, 241-243.
District of Columbia:
full inspection of fuel in, 1578-1580.
harbor regulations, 1147-1150.
District of Columbia Militia (see Militia):
accountability of officers, 1744.
active militia, 1717.
adjutant-general, 1715, 1716.
allowances, etc., 1766-1770.
ambulance corps, 1723.
armories, 1748.
arms, 1738-1750.
artillery, 1722.
bands, 1724, 1767.
by laws, restriction, 1771.
calling forth, 1711, 1712.
command, 1712-1716.
commander in chief, 1712.
commanding general, 1713.
commissioned officers, 1726-1731.
contracts, leases, etc., 1770.
courts-martial, 1761-1765.
deductions of pay, etc., 1749, 1750.
disbursements, 1769, 1770.
disbandment of commands, 1726.
discharges, 1731, 1735-1737.
discipline, 1773.
distinctive uniforms, 1746, 1747.
duties, 1751-1760.
duties of officers, 1772.
elections, 1729.
encampments, 1754.
engineer corps, 1723.
enlisted men, 1732-1737.
enrollment, 1707-1711.
equipments, 1738-1750.
estimates, 1769.
examinations, 1730.
exemptions, 1708.
expenses, etc., 1766-1770.
infantry, 1719-1721.
instruction, 1773.
1128
INDEX.
District of Columbia Militia— Continued.
issues to, 1739-1740.
leases, etc., 1770.
military dutes, 1757-1760.
National Guard, 1717, 1718.
noncommissioned officers, 1732.
organization, 1717-1725.
parades, 1758, 1759.
property returns, 1742.
regulations, 1774.
riots, suppression of, 1756.
signal corps, 1723.
status of members, 1775.
strength, 1718.
subsistence on duty* 1768.
tribunals, military, 1761-1765.
uniform, 1738-1750.
unserviceable property, 1745.
Double Salaries, 166. (See Salaries.)
Draft Animals:
purchases of, 731.
Drafts (see Checks), 309-311, 630.
Draftsmen:
engineer bureau, 976.
Drawbridges on Navigable Waters, 1116, 1117.
regulations for, 1117.
Drays:
purchases, 729.
Dredging Beyond Harbor Lines, 1120.
Duels (see Challenges).
Duplicate Certificate of Discharge, 1388-1390.
Eight- Hour Law, 1572-1575.
Election Franchise:
enforcement, 2066, 2067.
Electrician Sergeants, 1443.
Embezzlement, 660.
Emergency Purchases, 713, 768. (See Purchases.)
Emergency Ration, 770. (See Rations,)
Employees, Civil (see Civil Employees, and Civil
Service) :
deceased, transportation of remains, 96.
restrictions on employment, 26-31.
Employment of Military Force:
Atlantic and Pacific Railroad, 2066.
combinations in restraint of trade, 2063.
election franchise, 2066, 2067.
extradition, 2080-2083.
guano islands, 2094-2102.
Hawaiian Islands, 2068.
Indian reservations, 2023-2028.
insurrection, 2015-2022.
invasion and insurrection, 2015-2022.
neutrality, enforcement of, 2069-2079.
Northern Pacific Railroad, 2064.
obstructing mails, 2062.
public health, 2068.
public lands, 2069-2071.
quarantine, 2068.
restriction on, 2093.
Southern Pacific Railroad, 2067.
suspension of intercourse, 2029-2050.
treason, 2094-2098.
Union Pacific Railroad. 2065.
Engineer Battalions, 961-971. (See Engineer
Corps, and Engineer Department.)
band, 961, 963, 964.
companies, 968.
Engineer Battalions— Continued.
duties, 970.
increase in strength, 969.
line of Army, 962.
noncommissioned staff, 965.
number, 961.
officers, 967.
organization, 965-967.
staff, 966.
Engineer Bureau:
draftsmen in, 976.
Engineer Commissioner, District of Columbia,
1011-1019.
assistants, 1016.
appointment, 1011, 1012.
control of wharf property, 1019.
estimates, 1017.
powers, 1018.
Engineer Company (see Engineer Battalions):
increase in strength, 969.
organization, 968.
Engineer Corps (see Engineer Battalions, and En-
gineer Department):
appointments, 956.
bands, 963, 964.
battalions a part of line, 962.
command, 960.
composition, 953.
enlisted men, 961-971.
examinations for promotion, 958, 959.
fourteen years' service, promotion, 957.
organization, 953; p. 1059.
promotions, 955, 957.
transfers, 960.
Engineer Department (see Navigable Waters of the
United States, and River and Harbor Works):
annual reports, 1103.
bridge equipage, 971.
bridges over navigable waters, 1114-1117.
California D6bris Commission, 1049-1081.
civil engineers, 973-975.
clerical force, 134.
command of officers, 567.
contracts and purchases, 1104-1106.
deposits in New York Harbor, 1134-1146.
disbursements for fortifications, 1089.
draftsmen, 976.
Engineer Commissioner, District of Columbia,
1011-1019.
estimates, 1102.
fishways, 1109.
fortifications, 1086-1090.
harbor lines, 1118-1121.
historical note, p. 437.
injuries to public works, 1122-1132.
Isthmian Canal Commission, 1082-1085.
Light-House Board, 1021-1028.
mileage on river and harbor works, 1110.
Mississippi River Commission, 1029-1043.
Missouri River Commission, 1044-1048.
navigable waters, 1091-1097.
obstructions to navigation, 1114-1117.
operation of canals, etc., 1111-1113.
permits for use of public works, 1125.
pontoons, etc., 971.
. promotion, fourteen years' service, 591.
INDEX.
1129
Engineer Department— Continued.
reports, 1098.
retired officers, employment in, 976.
river and harbor works, 1098-1110.
river and harbor works, report, 132.
sunken vessels, removal, 1132a, 1133.
surveys, restrictions on, 1099-1101.
transfer of officers, 590, 960.
use of public works, prohibition, 1125.
wrecks, removal of, 1132a, 1133.
Engineer School, 1515.
Engineer Troops, p. 1052.
Engineers:
employment, 26, 27.
Enlisted Men (see Enlistments, and Re-enlistments):
absence without leave, 1393.
allotments of pay, 871-875.
allowance of—
clothing, 893, 894.
fuel, 738 note,
quarters, 734-737.
rations, 771, 772.
altering clothing, 891, 892.
certificates of merit, 1358, 1359.
claims for property lost, 221, 222.
confinement, 1783-1785.
cooking, supervision of, 788.
deceased, 1412-1415.
effects of, 1414, 1415.
deductions, 889-898.
deposits, 879-882.
desertion, 1394-1404.
details for recruiting service, 679.
discharge, 1383-1390.
enlistment, 1364-1375.
examinations of, for promotion, 1278-1282.
exemption from arrest for debt, 1412.
extra-duty pay, 742-747.
funeral expenses, 1416-1418.
furloughs, 1378.
increased pay in time of war, 512.
issues of rations, 771, 772.
medals of honor, 1356, 1357.
ordnance sergeants, 1162, 1163.
payments to, 800-804.
quarters, allowance of, 738, note.
rations, 769-777.
redress of wrongs, 1852; 30 A. W.
re-enlistment, 1373-1375.
remains, disposition, 1416-1418.
restriction on numbers, 507, 608; p. 1064.
retired pay, 876-878.
retirement, 1379-1382.
sales of subsistence to, 778-784.
servants, not to be used as, 1335, 1413.
Signal Corps, 1224.
Soldiers' Home, 2269-2278.
deductions for, 889.
stoppages of pay, 889-398.
transfers, 1376, 1377.
transportation, 720, note.
travel pay on discharge, 1391, 1392.
Enlistments (see Enlisted Men, and Re-enlistments):
age, 1364, 1365.
bounty, 677.
citizenship, 1366.
deserters, 1368, 1369.
Enlistments— Continued.
English, reading, writing, and speaking, 1366.
excess in, authorized, p. 1062.
felons, 1368, 1369.
fraudulent, 675, 1372.
general qualifications, 1364, 1365.
insane persons, 1368, 1369.
intoxicated persons, 1368, 1369.
language, 1366.
minors, 1367, 1368, 1369.
oath of, 676.
premium for, 1371.
prohibited, 1367-1369.
qualifications for, 670, 671.
term, 1370.
unlawful, 674.
Ensigns (Nary):
relative rank, 564.
Envelopes (see Penalty Envelopes):
contracts for, by Postmaster-General, 328.
penalty, 100, 320-327.
purchase of, by Postmaster-General, 328.
return penalty, 326.
Estimates (see Appropriations) :
appropriations outstanding, 66.
Book of, 62-78.
buildings, 68.
buildings rented, 73, 74.
channel of communication, 65.
claims allowed, 70.
compensation, of officers, etc., 69.
condition of business, 77.
contents, 66-78.
date of submission, 64.
deficiencies, 65.
detailed clerks, reports of, 77.
efficiency report of clerks, etc., 78.
explanation of items, 72.
increase in, 72.
manner of communicating, 64-67.
preparation, 64.
printing and binding, 68.
proceeds of sales, 75.
public works, 71.
river and harbor works, 71, 76.
salaries, 69.
statement of appropriations, 63, 66.
submission, 266, 267.
transmitted through Secretary of Treasury, 65.
variation in amount, 72.
Evidence:
accused persons, testimony of, 1817.
consular records, 1824.
depositions, 1828; 91 A. W.
documents in Executive Departments, copies,
1818-1822.
embezzlement, 651.
exclusion of, for color, interest, etc., forbidden,
1815.
given under oath, 1814; 92 A. W.
journals of Congress, 1823.
judicial proceedings, 1826.
laws of United States, 1827.
legislative acts, 1825.
record of court of inquiry, 1869; 121 A. W.
records of State officers, 1826.
returns office, 1822.
1130
INDEX.
Evidence— Continued.
Revised Statutes, 459.
Statutes at Large, 483-485.
supplements to Revised Statutes, 477.
transcripts from books of Treasury, 1820, 1821.
transcripts of accounts by Auditor, 205.
Examination (see Civil Service, Commissioned
Officers, and Examinations for Promotion}:
absence of officer, p. 1063.
admission to Military Academy, 1482.
details to staff, 580-582, 1285.
Marine Corps, 423, 424.
promotion, 583-588,1274-1277.
volunteer officers, 522.
Examinations for Promotion (see Examination) :
absent officer, 588.
civil appointee, 585.
engineer officer, 587.
enlisted men, 1278-1282.
failure to pass, 584.
physical disqualification, 584.
ordnance officer, 587.
re-examination, 584.
Exchanges of Funds, 609, 610.
premium to be accounted for, 610.
Executive (see Executive Departments, and Presi-
dent):
Commander in Chief, 2.
reprieves, 2.
Executive Departments (see Chief Clerks, Clerks,
Executive Departments, and Salaries):
advertising, 79, 81.
annual reports, 86-92.
arms, issues to, 1204.
arrears of business, reports, 53.
books, papers, etc., accessible to accounting
officers, 108.
chief clerks, 21-23.
claims, prosecution of, 110-116.
classification of clerks, 32-36.
clerks, 25-48.
reports of, 87.
closing buildings for death of ex-officer pro-
hibited, 98.
condition of business, reports of, 77, 88.
contracts, 80-82.
copies of documents in evidence, 1818-1822.
Court of Claims, reference of cases to, 366.
detail of clerks, 35.
destruction, forgery, etc., of public records,
103-105.
draping buildings in mourning prohibited, 97.
envelopes, penalty, 100, 320-327.
envelopes, purchase of, 328.
fuel, inspection of, 83-85.
holidays, 46^8.
hours of labor, 52, 53.
interpretation of term, 12.
inventories of property, 93.
laborers, 38.
libraries, 109.
messengers, 38.
' oaths, 49-51.
official register, 92a.
penalty envelopes, 100, 320-327.
postage stamps, official, 99.
proposals, 80.
provisions of law applicable to, 12.
Executive Departments— Continued,
purchases, 80-82.
recording clocks prohibited, 95.
records, 20.
reduction of clerks, ;{<;, :;7.
regulations, 20.
renting buildings, restriction on, 93a, 94.
reports, 86-92.
requisitions for funds, 61.
stationery, purchases of, 82.
telegraph line to Capitol, 101, 102.
useless papers, disposition 106, 107.
watchmen, 38.
Executive Power, 1. (See President.)
Executors:
liability of, 246.
Exemption from Arrest (see Arrest):
enlisted men, 1412.
marines, 438.
Expatriation, Right of, 1877.
Expert Accountant:
Inspector-General's Office, 684.
travel allowances, 847.
Extortion, 1566.
Extradition:
enforcement of, 2080-2083.
Extra Duty (see Pay):
artisans, pay of, 742, 745.
assistant to Vicksburg Park Commission, 2408.
clerks, pay of, 742, 745.
details on, to be in writing, 743, 744.
insular possessions, 747.
laborers, pay of, 742, 745.
mechanics, pay of, 742, 745.
rates of pay, 742, 745.
restriction on, in insular possessions, 747.
restriction on, in time of war, 746.
school teachers, pay of, 742, 745.
teamsters, pay of, 742, 745.
time of war, 746.
Extra Pay (see Pay) :
volunteers on discharge, 536-539.
Failure to Deposit Funds, 649, 650.
Failure to Render Accounts, 648.
Failure to Safely Keep Public Funds, 646, 647.
Family:
restriction on appointment of members, 152.
Federal Courts (see Habeas Corpus):
habeas corpus, 346-361.
Field Artillery, 1430, 1439, 1440.
Field Ration, 770.
Fiscal Agents, expenses, 295a.
Fiscal Tear, 184.
Flshways, 1109.
Flags (see Colors) :
captured, disposition, 124,
United States, description, 2466, 2467.
Flogging, prohibited, 1833.
Forage:
allowance, 740, 741.
commutation in Marine Corps prohibited 430.
Forces:
National, composition, 495,496.
Foreign Service:
computation of, for retirement, 1381.
Foreign Decorations, 1354, 1355.
restrictions as to use of, 1355.
Forms of Accounts, prescribed by Comptroller, 191.
INDEX.
1131
Fortification, Board of Ordnance and, 1209-1217.
Fortifications (see Board of Ordnance and Fortifi-
cations):
disbursements, 1089.
donations of land, 1087.
emergency procedure, 1088.
injury to mines, etc., 1090.
penal offenses, 1090.
procurement of sites, 1086, 1088.
Franking Privilege, 100, 320-327.
Members of Congress, 100, 322-325.
official correspondence, 100, 320-327.
penalty envelopes, 100, 320-327.
Fraud:
in civil service examination, 149.
Fuel (see Quartermaster' s Department) :
allowance, 738, note.
inspection of, in District of Columbia, 83-85,
1578-1580.
sales to officers, 740.
Funds (see Accounts, Public Moneys, and Treasury
Department) :
advances of, 617, 618.
requisitions for, 61, 209.
Funeral Expenses (see Biirial, and Deceased Offi-
cers):
commissioned officers, 1341.
enlisted men, 1416-1418.
Furloughs to Enlisted Men, 1378.
pay during, 884.
Furniture for Schools, 714.
Garrison Courts-Martial, 1853, 1854; 82 A. W. (See
Inferior Courts.)
Garrison, Ration, 770.
General Courts-Martial (see Courts- Martial):
arraigament, 1808; 89 A. W.
attachment, process of, 1810.
behavior of members, 1806; 87 A. W.
challenges, 1802; 88 A. W.
closed sessions, 1830.
composition, 1791-1793; 75-78 A. W.
constitution, 1789-1790; 72, 73 A. W.
contempt of court, 1807; 86 A. W.
counsel for accused, 1800.
findings, 1829; 95 A. W.
judge-advocates, 1798,1799.
jurisdiction, 1795, 1797.
members, 1791-1794, 1806; 75-79, 87 A. W.
oath—
judge-advocate, 1805; 85 A. W.
members, 1804, 84 A. W.
witness, 1809; 92 A. W.
reporters, 1801.
sentences, 1831-1337.
General Officers:
appointment, 559, 560; p. 1063.
sentences affecting, 1821.
General of the Army:
discontinuance of office, 558.
General of the Army:
historical note, p. 203.
Geneva Convention of 1864; pp. 1029-1034.
additional articles of October 20, 1868; pp. 1034-
1040.
agreement of July 29, 1899; pp. 1041-1043.
Gettysburg National Park, 2379-2398.
acquisition of lands, 2379, 2382, 2383, 2389.
appropriations, 2384.
Gettysburg National Park— Continued.
avenues, 2385.
commissioners, 2381.
condemnation of lands, 2883, 2389.
continuing surveys, 2386.
designation, 2380.
disbursements, 2384.
injuries to monuments, trees, etc., 2394.
leases, 2390.
monuments, 2385, 2391-2393.
regulations, 2395.
roads, 2385, 2387.
specimens of arms, uniforms, etc., 2388.
tablets, 2385.
Government Hospital for the Insane, 2340-2348.
(See Insane Hospital.)
Government Works, Injuries to, 1122-1132.
Gratuitous Issues (see Issues):
clothing, 750.
ordnance, 1182, 1183.
Guano Islands, Protection of, 2094-2102.
Gunners, Increased Pay to, 1444.
Habeas Corpus:
appeals, 358-360.
body of petitioner, production of, 353.
form of return, 351, note.
issue of writ, 350.
power to issue writ, 346-350.
return, to writ, 351-356.
State courts, j urisdlction in, 361.
suspension of privilege, 361a.
Harbor Lines:
District of Columbia, 1121.
dredging beyond, 1120.
establishment, 1118.
extensions of piers, etc., 1119.
permits, 1119.
restriction on dredging, 1120.
Harbor Regulations:
District of Columbia, 1147-1150.
Harpers Ferry, Marking Lines of Battle at, 2419.
Hawaiian Islands, Enforcement of Law In, 2068.
Hazing at Military Academy, 1495. (See Military
Academy.)
Headquarters:
clerks', 572,573.
location, 574.
messengers', 572, 573.
Heads of Bureaus (see Chiefs of Bureaus):
succession to office, 14.
vacancies, temporary, 13-19.
Heads of Executive Departments (see Executive
Departments) :
absence, performance of duty, 13.
accounting-
regulations for, 208.
rules for, 634.
chief clerks' reports, 22, 23.
Comptroller's decisions in accounting, 192.
details of clerks, 35.
distribution of clerks, 35.
estimates, 62-78.
opinions of Attorney-General, 2.
reduction of clerks in grade, 36, 37.
regulations, 20.
for property returns, 1636.
reports, 86-92.
reports of chief clerk, 22, 23.
vacancy in office, succession, 13, 15, 16.
1132
INDEX.
Holidays, 46-48.
Homesteads, 1584-1592.
Honorable-Service Boll, Prohibition of, 30.
selling, losing, etc., 1649; 17 A. W.
restriction on —
number, 728-732.
purchases, 729-732.
transportation, 720, note.
Hospital Corps (see Hospital Stewards, and Hos-
pitals):
acting hospital stewards, 914, 920, 924.
composition, 914.
duties, 922.
hospital stewards, 915-921.
pay, 919.
privates, 914.
Hospital Stewards (see Hospital Corps, and Hos-
pitals):
allowances, 919.
appointment, 915.
credit for volunteer service, 921.
examination, 920, 921.
number, 915-917.
pay, 919.
quarters, 736, 931.
rank, 919.
qualifications, 920, 921.
Hospitals (see Hospital Corps, and Medical Depart-
ment):
matrons, 929, 930.
nurses, 930.
quarters for stewards, 931.
rations to—
matrons, 773.
nurses, 773.
Hot Springs, Ark. :
Army and Navy Hospital, 936-939.
House of Representatives:
franking privilege, 100, 322-325.
Hydraulic Mining (see California Debris Commis-
sion), 1056-1072.
Increased Pay (see Commissioned Officers, and Pay
of Enlisted Men) :
commissioned officers, 814-816.
enlisted men, 865, 866.
Indian Agencies (see Indian Agents, and Indians) :
buildings, sale of, 1939, 1940.
consolidation, 1917.
discontinuance, 1916.
limits of, 1901.
transfer of, 1918, 1919.
Indian Agents (see Indian Agencies, and Indians) :
acknowledgments, 1910.
additional security, 1915.
Army officers as, 1903, 1904.
bonds, 1900.
compensation to be in full, 1913.
discharge of employees, 1920.
duties, 1897, 1909-1911, 1921.
investigations, 1911.
limits of agency, 1901.
oaths, administration of, 1909, 1911.
residence, 1902.
restriction on compensation, 1905.
restriction on office holding, 1912.
special agent, 1906.
sub-agents, 1907.
Indian Agents — Continued.
superintendent of manual training school to
act as, 1908.
tenure of office, 1899.
travel expenses, 1914.
Indian Country (see Indian Reservations, and In-
dians):
arson, 1991.
assault, 1990.
burglary, 1994.
forgery, 1986.
horse stealing, 1993.
laws extended to, 1987, 1988.
rape, 1992.
removal of intruders, 2000-2005.
robbery, 1994.
Indian Department (see Indian Agents, and In-
dians):
officers of Army to be detailed as agents, 1333.
Indian Police, 2011-2014.
Indian Reservations (see Indian Country, and In-
dians) :
cattle, sale or removal of, 1973, 1974.
crimes and offenses, 1986-2010.
expulsion of foreigners, 1968.
government of Indians, 1941-1959.
hunting on, forbidden, 1972.
liquor, introduction or sale of, 1975-1985.
police, 2011-2014.
process on, 2006-2008.
protection of Indians, 1941-1959.
removal of persons, 2000-2005.
removing cattle, penalty, 1973.
sales of arms, 1970, 1971.
sales of cattle, penalty, 1974.
service of process on, 2006-2008. •
timber depredations, 1999, 2000.
traders, 1960-1967.
Indian Scouts, 506.
pay, 864.
strength, 606.
Indian Traders:
appointments, 1960, 1961.
licenses to trade, 1962-1967.
Indian Wars, Pensions for, 2167-2174.
Indians (see Indian Agencies, Indian Agents, In-
dian Country, and Indian Reservations):
abrogation of treaties with, 1923.
absconding, arrest of, 2006.
agents, 1898-1921.
annuities, 1924, 1925, 1929-1938.
arms, sales to, 1969-1971.
crimes in connection with, 1986-2010.
Army officers as agents, 1903, 1904.
Commissioner of Indian Affairs, 1894, 1895.
government and protection, 1941-1959.
inspectors, 1896, 1897.
issues of army rations to, 774.
liquor, introduction and sale, 1975-1985.
not permitted to enter Texas, 2010.
offenses against, 1994.
performance of engagements with, 1922-1940.
police, 2011-2014.
prohibited purchases and sales, 1969-19.71
purchases from, 718.
reparation for injured property, 1996-1998.
sales of arms to, 1970-1971.
INDEX.
1133
Indians— Continued.
Secretary of Interior, powers, etc., 1893, 1894.
subject to criminal laws, 1989.
traders, 1960-1974.
treaties with, not to be made, 1922.
Infantry (see Infantry Regiments):
bands, 1448.
battalion staff, 1449.
increase in strength, 1451.
colored regiments, 1446.
companies, 1450.
composition, 1445.
organization, 1445.
Porto Rican regiment, p. 1065.
regiment, p. 1051.
regimental staff, 1445, 1447.
Infantry Regiments (see Infantry):
bands, 1448.
battalions, 1445, 1449.
colored regiments, 1446.
companies, 1450.
composition, 1445.
details, 1447.
increase in strength, 1451.
staff, 1445, 1447.
Infantry and Cavalry School, 1518.
Inferior Courts (see Garrison Courts- Martial, Regi-
mental Courts-Martial, and Summary Court):
disposition of records, 700, 701.
garrison courts, 1853; 82 A. W.
jurisdiction, 1851-1861.
power to punish, 1854.
redress of wrongs, 1852; 30 A. W.
regimental courts, 1851; 81 A. W.
summary court, 1855-1861.
Injuries to Public Works, 1122-1132.
Insane, Government Hospital for, 2340-2348.
Insane Hospital:
admissions, 2344.
appropriations, 2345.
asylums in California, 2348.
discharges, 2331.
establishment, 2340.
funds of inmates, 2343.
inmates of Government Asylum for the Insane,
2346.
pensions to inmates, 2347.
superintendent, 2342, 2343.
supervision, 2341.
Insignia of Societies, 1360-1363.
Inspector-General's Department (see Inspector-
General s Office):
administration of oaths, 691.
composition, 680.
designation of articles for sales, 690.
details, 682, 683.
duties, 685,686,688-691.
examinations for promotion, 681.
expert accountant, 684.
historical note, p. 263.
inspections, 685-691.
National Home, inspection of, 688, 2295.
organization, 680; p. 1053.
promotions, 681.
public works, inspection of, 685, 686.
restriction on mileage, 687.
Soldiers' Home, inspection of, 689, 2266. .
Inspector-General's Office (see Inspector- Genera? s
Department) :
clerical force, 184, note.
Inspections:
disbursements, 625, 626, 685, 686.
fuel, in District of Columbia, 83-85, 1578-1580.
reports, 626.
Insular Possessions:
extra-duty pay forbidden in, 747.
Intercourse:
suspension of, 2029-2050.
Interior Department:
duties, 452, 453.
establishment, 451.
Inventions :
patents on, 1201.
prohibition of expenditures on, 1200.
Iowa River:
a navigable water, 1093.
Issues (see Gratuitous Issues, and Quartermaster's
Department) :
civilians, 771, note.
forage, 740, 741.
fuel, 738, note.
ordnance, 1167, 1168.
rations, 766.
visiting Indians, 774, note.
Isthmian Canal Commission, 1082-1086.
Job Printing, 710.
Judge- Advocate-General:
custodian of records of courts-martial, 696.
Judge-Advocate-General's Department (see Judge
Advocate- General' s Office) :
administration of oaths, 699.
appointments, 694.
composition, 692.
details, 695.
duties, 696-699.
historical note, p. 268.
judge-advocates' duties, 698.
organization, 692; p. 1053.
professor of law at the Military Academy, 698.
promotions, 693.
records of trials by court-martial, 700, 701.
Judge- Advocate-General's Office (see Judge-Advo1
cote-General's Department):
clerical force, 134.
Judge- Advocates of Courts (see General Courts'
Martial, and Judge-Advocate-General's De-
partment):
appointment, 1798; 74 A. W.
authentication of record, 1839, note.
closed sessions, withdrawal, 1830.
counsel for accused, 1800; 90 A. W.
duties, 1799; 90 A. W.
oath, 1804, 1805; 84, 85 A. W.
record of proceedings, 113 A. W.
Labor Day, 48.
Labor :
bonds to secure payment for, 1576, 1577.
hours of, 52, 63.
Laborers:
extra-duty pay, 742, 745.
salaries, 38.
Land-Grant Railroads, 722, 725.
Lands (see Acquisition of Land, and Public Lands):
acquisition, 1593-1599.
1134
INDEX.
Lands — Continued.
examination of titles, 334, 335.
purchases, authority of law for, 1593-1595.
Lapsed Salaries, 28. (See Salaries.)
Larceny:
penalty, 660.
Law Books:
purchases of, 58.
Law of War, 2112.
Leases of Public F jperty, 1620.
Leaves of Absence (see Absence), clerks, etc., 43-45.
commissioned officers, 826-828.
cumulation, 1287.
employees at arsenals, 1196.
female nurses, 927.
nurses, 927.
pay during, 826-828.
sick leaves, 43-45, 1286.
Legal Services:
how procured, 342-344.
Legal Tender, 305-308.
Letters (see Official Letters) :
penalty envelopes, 100, 320-326.
registry, 327.
Libraries:
Executive Departments, 109.
Library of the Surgeon-General's Office, 940.
Lieutenant- Colonel :
relative rank, 564.
Lieutenant-Commander (Navy) :
relative rank, 564.
Lieutenant- General :
aids, 556.
military secretary, 566.
relative rank, 564.
historical note, p. 206.
Lieutenants:
relative rank, 564.
Lieutenants, Senior and Junior Grade (Nary):
relative rank, 564.
Light- House Board, 1021-1028.
composition, 1021, 1022, 1026.
duties, 1023.
inspectors, 1026.
purchases, 1024, 1025.
Limited Retired List, 1301, 1302.
Limits of Punishment, 1838. (See Punishment.)
Line of the Army :
artillery corps, 1429; p. 1049.
cavalry, 1419-1428; p. 1048.
engineer battalions, 962.
infantry, 1445-1461; p. 1051.
Liquor:
introduction and sale on Indian reservations,
1975-1985.
sale of—
at exchanges, 1630.
in buildings used for military purposes, 1630.
Loaning Public Money, 646.
Logs:
floating of, in navigable waters, 1128, 1129.
Longevity Pay, 818-823.
Louisiana:
rivers in, 1092.
Magazine Small Arms, 1202.
Major:
relative rank, 564.
Major-General:
aids, 557.
forage, 740.
fuel, 738, note.
historical note, p. 203.
quarters, 738.
relative rank, 564.
Makoqueta River, Iowa, 10%.
Mall Matter:
classification, 316.
franking privilege, 320-327.
rates of postage, 317.
registry, 327.
soldiers' letters, 317.
special delivery, 318, 319.
Maps:
sale of, 140, 141.
Marine Band, 435.
Marine Corps (sec Navy Department):
age limit, 423.
allowances, 429.
appointments, 421-424.
commandant, 420.
composition, 419.
courts-martial, 446.
duty on shore, 443.
enlisted strength, 434.
enlistments, 436.
examinations, 423, 424.
forage, commutation prohibited, 430.
oath of enlistment, 437.
organization, 442.
pay, 429.
rations, 439-441.
regulations, 444.
relative rank, 427.
retirement of officers, 431, 432.
shore duty, 443.
staff, 425, 426.
vacancies, 422.
Marines (see Marine Corps):
issues of subsistence, 766.
Marking:
as punishment, prohibited, 1833.
Materials:
bonds to secure payment for, 1576-1577.
Matrons, Hospital (see Hospitals):
rations, 773.
Maximum Punishment Code, pp. 1067-1073. (See
Punishment.)
Means of Transportation (see Transportation):
procurement, 726.
Meat Issues:
proportion, 770.
Medals of Honor, 1356, 1357. (See Decorations.)
Medical Attendance:
commissioned officers, 911.
enlisted men, 911.
families, 911.
nurses, 927.
Medical Department (see Staff Departments, and
Surgeon- General's Office) :
appointments, 902.
army medical museum, 940, 941.
artificial limbs, 942-952. (See Artificial Limbs.)
attendance, 911.
command of officers, 508, 913.
INDEX.
1135
Medical Department— Continued.
composition, 899, 901.
contract surgeons, 902; p. 1056.
cooking, supervision of, 912.
credit for service, 905.
dental surgeons, 903, 904; p. 1056.
duties, 910-913.
examinations for—
appointment, 902.
promotion, 903, 904.
female nurses, 925-928.
headquarters, location, 574.
historical note, p. 363.
Hospital Corps, 914-924.
hospitals, 929-931.
Hot Springs, Ark., hospital, 936-939.
library, 940.
nurse corps, 925-928; p. 1057.
nurses, pay, 858-861.
organization, 899, 901; p. 1055.
promotions, 903, 904.
purchases, 932, 933.
rank and precedence, 901.
relative rank, 906.
sales of medical supplies, 934, 935.
trusses, 950-952.
volunteer surgeons, 900.
volunteers, 519.
Member of Congress (see Penalty Envelope):
consideration for obtaining office, 178.
contracts, not to be interested in, 178.
franking privilege, 322-325.
Messengers at Headquarters, 572, 573.
Messengers of Executive Departments:
salaries, 38.
Mess Furniture:
purchases, 714.
Messes:
purchases for, 714.
Mexican War Pensions, 2157-2166.
Mileage (see Pay Department, and Travel Allow-
ances] :
deduction for transportation in kind, 721-725,
843-845.
duty to be stated, 838.
necessity for travel to be stated, 837.
orders involving payment of, 838.
payments of, by Pay Department, 848, 849.
rate, 837-840.
restriction on payment of, 687, 846.
river and harbor works, 1110.
route, 837-840.
sea travel, 841.
tables of distances, 840.
Military Academy (see Cadets):
academic staff, 1458-1460.
adjutant, 1477.
admission, qualifications for, 1481, 1482.
appointment of cadets on graduation, 1486-1488.
appointments of officers and professors, 1463.
army service men, 1509-1511.
assistant librarian, 1476.
assistant professors, 1474, 1475.
band, 1508.
Board of Visitors, 1497-1500.
chapels, 1513.
chaplain, 1461.
Military Academy— Continued.
commandant of cadets, 1466, 1469.
commissary of cadets, 1478.
contingent funds, 1506, 1507.
corps of cadets, 1479-1496.
courts-martial for trial of cadets, 1495.
Cullum memorial, 1512.
details of officers, 1464, 1465.
- examination for admission, 1482.
graduation of cadets, 1486-1488.
hazing, 1496.
instruction of cadets, 1489-1494.
leaves of absence, 1501.
librarian, 1476.
master of the sword, 1472, 1473.
organization, 1458-1478.
physiology, instruction in, 1492, 1493.
professors, 1458-1460.
professor of law, 698, 1459.
promotion of graduates, 1486.
purchases, 1505.
quartermaster of cadets, 1478.
restriction on details, 1465.
selection of officers for detail, 1464, 1465.
study on Sunday, 1491.
superintendent, 1458, 1463, 1466-1468.
supervision, 1462.
Military Commissions, 1862. (See Military Tri-
bunals. )
Military Establishment:
composition, 495-508.
militia, 495,496.
national forces, 495.
peace, 499-508.
Regular Army, 496, 497, 499-508.
Volunteer Army, 495, 497, 498, 517-528, 543-554.
war, 509-514.
Military Force (see Employment of Military Force):
restriction on employment of, 2093.
Military Headquarters:
location, 574.
clerks, 572, 573.
messengers, 572, 573.
Military Occupation of Cuba, 2112.
Military Secretary, 556.
appointment, 556.
rank, 556.
pay and allowances, 556.
Military Storekeepers:
quartermasters' department, 706.
ordnance, 1169-1171.
Military Telegraph Lines (see Telegraph, and Tele-
graph Lines) :
Alaska, lines in, 1231.
commercial business over, 1232.
construction, 1227, 1231.
injuries to, penalty, 1234.
receipts to be turned into Treasury, 1232, 1233.
Military Tribunals (see Courts- Martial):
arraignment, 1808.
arrest and confinement, 1782-1788.
behavior of members, 1806.
challenges, 1802.
charges and specifications, 1785, note 2; 1786.
closed sessions, 1830.
contempt of court, 1807.
continuances, 1803.
1136
INDEX.
Military Tribunals— Continued.
counsel for accused, 1800.
courts of inquiry, 1863-1869.
depositions, 1828.
District of Columbia militia, 1761-1765.
evidence, 1814-1828.
fees of witnesses, 1812-1814.
findings, 1829.
general courts-martial, 1789-1794.
inferior courts-martial, 1851-1861.
interpreters, 1801.
judge-advocates, 1798-1800.
jurisdiction, 1795-1797.
limits of punishment, 1838.
military commissions, 1862.
militia, 1688-1690.
oath—
judge-advocate, 1805; 86 A. W.
member, 1804; 84 A. W.
witness, 1809; 92 A. W.
record, 1839-1841.
refusal of civilian witness to testify, 1811.
reporters, 1801.
reports of prisoners, 1787.
reviewing authority, 1843-1850.
revision proceedings, 1842.
sentences, 1831-1837.
witnesses, 1809-1813.
Militia:
acceptance in volunteer service, 520, 523.
active service, 1669-1674.
apportionment, 2021.
appropriations for, 1691-1694.
armament, 1691-1706.
artillery, 1659.
cavalry, 1659.
command, 2.
composition, 1650-1655.
courts-martial, fines, etc., 1688-1690.
discipline, 1662, 1663.
District of Columbia, 1707-1776. (See District of
Columbia Militia.)
enrollment, 1650-1655.
equipment, 1691-1706.
exemptions, 1655.
expenses of enrollment, 1679, 1680.
field organization, 1675-1678.
forage, etc., 1684.
half pay, pension, etc., 1685-1687.
horses, use of, 1684.
infantry, 1676.
instruction, 1662, 1663.
organization, 1656-1661.
pay, 878a.
pay, rations, etc., 1681-1684.
power of Congress over, 2015.
property returns, 1690.
rations, etc., 1681-1684.
returns, 133, 1664-1668.
service in volunteers, 520.
subject to Articles of War, 2021.
Territorial, 1777-1781.
travel allowances, 1679, 1680.
Mines:
injuries to, penalty, 1090.
Minors :
enlistment of, 672, 673.
Mints:
depositories of funds, 287, 288.
Mississippi Hirer Commission, 1029-1043.
annual report, 1036.
composition, 1030.
duties, 1032-1034.
engineer secretary, 1036.
material for improvements, 1037.
piers and cribs, 1039.
South Pass, 1040-1042.
water gauges, 1043.
Missouri Hirer Commission, 1044-1048.
annual report, 1048.
composition, 1045.
duties, 1046.
supervision of expenditures, 1047.
Morning Gun:
provision for, 1184.
Mounted Pay, 810.
National Banks:
depositories, 289, 290.
notes of, legal tender, 307.
National Cemeteries, 2448-2465.
acquisition of lands, 2449-2451.
City of Mexico, 2463, 2464.
criminal offenses, 2461, 2462.
encroachments by railroads, 2465.
headstones, 2455, 2456.
inclosures, 2455-2457.
interments, 2458-2460.
jurisdiction, 2461, 2462.
maintenance, 2448.
registers, 2457.
superintendents, 2452-2464.
National Forces:
composition, 495, 496.
National Homes (see Soldiers' Home):
accounts, 2316-2318.
admission of inmates, 2325.
annual report, 2296.
appointment of officers, 2298.
appropriations, 2305, 2308, 2309.
board of managers, 2287-2291.
bonds, 2292, 2294, 2303, 2304.
branch homes, 2298-2304, 2319, 2320.
discipline, 2332.
election of —
managers, 2288.
officers, 2289.
establishment of branch homes, 2319, 2320.
estimates and appropriations, 2305-2309.
expenditures, 2310-2315.
expenses of managers, 2290.
franking privilege, 2338.
general officers, 2289-2293.
general treasurer, 2292-2294.
insane patients, 2331.
inspection, 688, 2295.
jurisdiction over lands, 2339.
managers, 2287-2291.
medical officers, 2299.
officers of branch homes, 2298-2304.
ordnance, issues of, 2334, 2335.
out-door relief, 2327.
pensions to inmates, 2328-2330.
public documents, 2337.
purchases, 2310-2315.
INDEX.
1137
National Homes— Continued.
reduced rates of transportation to inmates, 2336.
salaried officers, 2291.
salaries to be classified, 2300.
supplies, how procured, 2310.
transfer of inmates, 2326.
travel expenses, 2302.
National Military Parks:
Antietam battlefield, 2414, 2422.
arrests of trespassers, 2354.
Chattanooga National Military Park, 2355-2382.
Chickamauga and Chattanooga Park, 2355-2382.
ejectment from purchased lands, 2355.
general requirements, 2349-2355.
Gettysburg National Park, 2379-2395.
injuries to monuments, trees, etc., 2361.
maneuvers, use for, 2349.
protection of, 2351-2355.
regulations for use, 2350.
Shiloh National Military Park, 2396-2406.
superintendents, power to arrest, 2354.
trespassing, hunting, shooting, etc., 2352, 2353.
Vicksburg National Military Park, 2407-2414.
National Parks, 2423-2447.
Yellowstone National Park. 2423-2447.
Native Troops:
Philippine Islands, 501-504; p. 1064.
Porto Rico, 505; p. 1065.
Naturalization (see Citizenship) :
alien enemies, not admitted, 1888.
alien, honorably discharged, 1882, 1883.
aliens of African descent, 1886.
children of declarant, 1885.
children of naturalized persons, 1889.
declaration of intention, 1881.
minors, 1884.
police court of District of Columbia, 1890.
procedure, 1880, 1881.
protection to naturalized citizens, 1878, 1879.
seamen, 1891.
widow of declarant, 1885.
Navigable Waters of the United States, 1091-1150.
(See River and Harbor Works.)
deposits in prohibited, 1124.
floating logs and timber, 1128, 1129.
obstruction of, by sunken vessels, 1132a, 1133.
obstructions to navigation, 1122.
rivers, 1091-1097.
Navy Department (see Marine Corps):
administration of oaths, 450.
detail of naval officers, 448.
establishment, 418.
Marine Corps, 419-446.
punishments on war vessels, 449.
supervisor of New York Harbor, 1136, 1137, 1143.
transfers to Navy, 447.
Neutrality:
enforcement of, 2069-2079.
Newspapers (see Pamphlets):
purchase of, 56, 57.
restriction on payments for, 181.
New Year's Day, 46.
New York Harbor:
arrests, 1139, 1146.
boats carrying deposits, 1138.
bribery, 1140.
deposits 1134-1146.
22924—08 72
New York Harbor— Continued.
disposition of dredged material, 1142.
fishing in channel forbidden, 1144.
inspectors, 1139, 1140.
penal clauses, 1145.
permits for deposits, 1136, 1141.
supervisor, duties, 1136, 1137, 1143.
Northern Pacific Railroad, 2064.
Nurse Corps:
allowances, 926-928; p. 1057.
appointments, 925; p. 1057.
chief nurses, 925; p. 1057.
composition, 925: p. 1057.
leave of absence, 927; p. 1057.
medical attendance, 927; p. 1057.
nurses, 927; p. 1057.
pay and allowances, 858-861, 926-928; p. 1357.
qualifications, 925; p. 1057.
reserve nurses, 925; p. 1057.
subsistence, 927; p. 1057.
superintendent, 925; p. 1057.
travel expenses, 928; p. 1057.
Nurses (see Nurse Corps) :
pay, 858-861, 926-928; p. 1057.
rations, 773.
Oaths:
administration, 49-51, 69, 128, 159-161.
administrative purposes, 1816.
Court of Claims, 374.
courts of inquiry, 1866; 117 A. W.
custody of, 162.
fees for administration, 49, 50, 128.
form of official, 155, 158.
judge-advocate, 1805; 85 A. W.
member of court, 1804; 84 A. W.
navy, 450.
postmasters, 314, 315.
witness, courts-martial, 1809; 92 A. W.
witnesses in claims cases, 386.
Obstructions to Navigation, 1115. (See Engineer
Department, and Navigable Waters of the United
States.)
Office (see Commissioned Officers, and Salaries):
oaths of, 155-162.
consideration for obtaining, prohibited, 178.
removal, report to Congress, 180.
restrictions on, 151, 152, 166-169.
Statutes at Large, preservation, 182.
failure to make returns, 171.
Officer In Charge of Public Buildings and Grounds:
telegraph line to Capitol, 101, 102.
Official Letters (see Letters):
free transmission, 320-327.
penalty envelopes, 100, 320-327.
registry, 327.
special delivery, 318, 319.
Official Register, 92a.
Opinions:
Attorney-General, 336-339.
heads of Departments, 2.
Orders for Travel:
duty to be stated, 838.
necessity to be stated, 837.
routes, 837-840.
Ordnance:
issues to colleges, 1296.
1138
INDEX.
Ordnance and Fortification (see Board of Ordnance
and Fortifications):
board of, 1209-1217.
Ordnance Department (see Chief of Ordnance,
Board of Ordnance and Fortifications, and
Staff Departments) :
accountability, 1172-1176.
ammunition for morning and evening gun, 1184.
arms, armories, and arsenals, 1190-1204.
artificers, 1165.
board for testing rifled cannon, 1186.
calibers, etc., to be furnished to makers, 1186.
chief ordnance officers, 1161.
clerical force, 134.
composition, 1151.
cost of arms for militia, credit of, 614.
damages, reports of, 1175.
depots, 1168.
details, 1154-1156.
distribution of arms to States, 1195.
duties, 1166-1168.
enlisted men, 1162-1165.
evening gun, 1184.
examinations for promotion, 1152, 1153.
expenses of officers at proving ground, 1188.
extra-duty pay, 742.
gratuitous issues, 1183.
historical note, p. 458.
issues, 1167.
issues of arms to Executive Departments, 1204.
issues to National Homes, 2334, 2335.
issues to States, credits, 1179.
loans of ordnance, 1182.
magazine arms, 1202.
miscellaneous purchases, 1189.
morning gun, 1184.
obsolete material, sales, 1177, 1178.
ordnance sergeants, 1162, 1163.
ordnance storekeepers, 1158-1160.
organization, 1151; p. 1059.
per diem to officers, 1188.
principal assistant, pay, 1157.
promotion, fourteen years' service, 591.
promotions, 1152, 1153.
under fourteen-year rule, 591.
proving ground, 1185, 1188.
purchases, 1169-1171.
regulations for returns, 1174.
restriction on payment of freight, 1181.
returns, 1173, 1174.
sales of obsolete material, 1177, 1178.
sale of useless ordnance, 1178.
sales by States, credits, 1180, 1181.
smoothbore cannon, sales, 1187.
testing machine, 1205-1208.
Ordnance Sergeants, 1162, 1163.
Organization:
tactical, 570, 571.
Outstanding Checks, 309-311. (See Checks.)
Pacific Coast:
advertising and deliveries, 712.
Pack Animals:
restriction on purchases, 728.
Pamphlets (see Newspapers):
purchase of, 57.
Pardoning Power:
restriction on, 2.
where vested, 2.
Pardons (see Pardoning Pmver):
conditional, 1808, note (p. 700).
power to grant, 2.
Pay (see Pay Department) :
absence with leave, 826-828.
without leave, 829. ,
advances, 812, 813.
cadets on graduation, 1485, 1488.
civilian employees, 748.
claims of States for reimbursement, 223-225.
commissioned officers, 807-829.
enlisted men, 862-S88.
extra-duty, 742-747.
extra, restriction on, 169.
extra, to volunteers on discharge, 536-539.
Indian scouts, 506.
Marine Corps, 429.
matrons, 857.
militia, 808, 1681, 1683, 1684.
mounted, 810.
native troops, 502-504, 505.
nurses, 858-861.
officers in arrears, 170.
troops, 800-804.
volunteers, 527, 528, 808.
Pay Department (see Accounts, and Disbursing
Officers) :
absence, pay during, 826-828.
accounts, settlement of, 216, 217.
additional paymasters, 793, 794.
advances of pay, 812, 813.
allotments, 871-875.
bonds, 798.
certificates of merit, 883.
check, payments by, 803.
clerks, 805, 806.
command of officers, 569, 804.
commutation of quarters, 830-835.
composition, 792-794.
continuous-service pay, 869, 870, 1375.
deductions, 850-856.
deposits, 879-882.
details, 796, 797.
enlisted men, 862-888.
examinations for promotion, 795.
express, payments by, 803.
higher command, 814, 815.
pay of, 814, 815.
historical note, p. 347.
longevity pay, 818-823.
matrons, 857.
mileage, 837-849.
nurses, 858-861; p. 1057.
organization, 792-794; p. 1058.
payments to troops, 800-804.
promotions, 795.
renewal of bonds, 798.
retired enlisted men, 876-878.
retired officers, 824.
restriction on allowances, 817.
stoppages, 852-856.
travel allowances, 837-849.
travel pay on discharge, commissioned offi-
cers, 850.
enlisted men, 887,888.
volunteer paymasters, 793, 794.
volunteers, 823a.
INDEX.
1139
Pay of Commissioned Officers, 807-829 (see Cam-
missioned Officers)'.
advances, 812, 813.
absence, 826-828.
deductions, 850-856.
foreign service, etc., 816.
higher command, 814, 815.
longevity pay, 818-823.
militia, 808.
mounted officers, 810.
rates, 807-811.
retired officers, 824, 825.
stoppages, 850-856.
travel, 850, 851, 1336-1338.
volunteers, 823a.
Pay of Enlisted Men (see Pay, Pay Department, and
Payments) :
absence on furlough, 884.
absence, pay during, 884.
absence without leave, 885.
allotments, 871-875.
assignments prohibited, 898.
captivity, pay during, 886.
certificates of merit, 883, 1358, 1359.
clothing allowances 893, 894.
continuous service, 869, 870.
cooks, 1457.
damages to arms, 897.
deductions, 889-898.
deposits, 878-882.
gunners, 1444.
increase for foreign service, 866,
war, 865.
Indian scouts, 864.
native troops, 503, 504; p. 1065.
rates, 862-864.
re-enlistment pay, 868, 1374.
retained pay prohibited, 867.
retired pay, 876-878.
sea travel, 888.
stoppages, 889-898.
travel pay on discharge, 887, 888.
Paymasters. (See Additional Paymasters.)
Paymaster-General (see Staff Departments):
duties, 799.
tables of distances, 840.
Paymaster-General's Office:
clerical force, 134.
Paymasters' Clerks:
appointment, 805.
employment, 805.
enlisted men as, 805.
pay, 806.
travel allowances, 847.
Payments (see Pay Department):
by check, 803.
by express, 803.
clerks in Departments, 27.
enlisted men, 800-804.
frequency of, to troops, 800-804.
officers, monthly, 836.
troops, 800-804.
volunteers, 527, 528, 878a.
Peace Establishment, 499-508. (See Regular
Army.)
Penalty Envelopes, 100, 320-327. (See Envelopes.)
character, 320, 321.
Penalty Envelopes — Continued.
contents, 320.
franking, 320-327.
return envelopes, 100, 326.
Senators, members, etc., may use, 100, 322-323.
use, 100, 320-327.
Penitentiary (see Prisoners) :
confinement in, 1837.
Pensions:
accrued and unclaimed, 2232-2234.
agencies, inspection of, 2247.
army nurses, 2155, 2156.
arrears, 2178-2185.
assignments, 2235, 2236.
attorneys' fees, 2203-2211.
children, 2137-2147.
civil employees, 2262.
civil, prohibited, 30.
commencement, 2178-2185.
Commissioner, duties, 2113-2115.
continuance of, 2258.
crimes in connection with, 2253-2256.
declarations in pension cases, 2189-2201.
dependent pension law, 2151-2154.
evidence and declarations, 2189-2201.
examining boards, 2237-2246.
general pension law, 2116-2136.
in addition to military pay method, 2261.
increase of, 2186-2188.
Indian wars, 2167-2174.
inmates of National Home, 2328-2330.
inmates of Soldiers' Home, 2280-2282.
investigations, 2249-2252.
limitation in filing claims, removal of, 2202.
Mexican war, 2157-2166.
nurses, army, 2155, 2156.
one only to be drawn, 2257.
payment, 2212-2231.
removal of limitation, 2202.
special acts granting, 2175-21 77. /
suspension of, 2248.
unclaimed, 2232-2234.
vested right to, 2248.
widows, 2137-2147.
withholding of, forbidden, 2259, 2260.
Per diem to Officers at Proving Ground, 1188.
on Board of Ordnance, etc., 1217.
Periodicals (see Newspapers) :
purchases of, 56-58.
Permanent Appropriations, 276.
Permanent Establishment, 499-508.
Philippine Islands, Native Troops, 501-504; p.
1064.
allowances, 502-504.
enlisted men, 501.
native officers, 503.
officers, 502, 503.
organization, 501.
pay, 502-504.
restriction on number, 501.
strength, 501.
Political Contributions (see Civil Service):
prohibition, 172-177.
Pontoons :
forms, etc., prescribed by Chief of Engineers,
971.
1140
INDEX.
Poor Debtors:
discharge of, 248, 249.
Porto Rico:
native troops, p. 1065.
Porto BIcan Regiment:
allowances, 506,
enlisted men, 505.
officers, 505.
pay, 505.
Posse comltatus (see Employment of Military
Force}:
Army not to be employed as, 2103.
Postage:
rates of, 317.
Post Bakeries, 1550, 1628. (See Bakeries.)
Post Commander:
summary court records, 701.
Post Commissary-Sergeants:
allowances, 762.
duties, 762.
number, 762.
pay, 762.
selection, 762.
Post Exchange:
buildings, use of, 1551.
purchases for, 715.
restriction, 1551.
sale of liquor, etc., 1630.
Post Gardens, 1551.
purchases for, 715.
Post-Offices at Military Camps, 329-331.
Post-Office Department (see Postmaster- General):
establishment, 313.
franking privilege, 320-325.
mail-matter classification, 316.
postage, rates, 317.
postmasters' oaths, 314, 315.
penalty envelopes, 100, 320-327.
purchases of envelopes, 328.
registry of official letters, 327.
special delivery, 318, 319.
Post Quartermaster- Sergeants:
allowances, 707.
appointment, 707.
duties, 707.
examination, 707.
number, 707.
pay, 707.
selection, 707.
Post Schools (see Schools, and Service Schools):
furniture, 714.
paper, 714.
purchases for, 714.
text-books, 714.
Post Traders, 1626.
Postage:
rates of, 317.
special-delivery stamps, 318, 319.
Postmaster-General (see Post- Office Department):
contracts for envelopes, 328.
post-offices at military camps, 329-331.
purchases of envelopes, 328.
Postmasters:
oath of office, 314.
Posts (see Barracks):
bakeries, 1550, 1628.
buildings, 1621, 1623, 1624.
Posts— Continued,
coast artillery, 1625.
contracts for, restriction on, 1623.
exchanges, 1629.
headquarters at, 574.
permanent barracks, 1621.
restriction on expenditures, 1549, 1621, 1623-1625.
schools, 1627.
title papers, 1622.
traders, 1626.
Potomac Park, 981-983.
President (see Executive Departments) :
advances of funds to-
disbursing officers, 617.
persons delinquent in submitting accounts,
640.
persons in military and naval service, 617, 812.
apartments for Chief of Engineers as superin-
tendent of Washington aqueduct, 998.
appointing power, 7-9.
appointment of —
board of visitors, Military Academy, 1497.
commanding general of militia of District of
Columbia, 1713.
Commissioner of Pensions, 2113.
master armorers, 1190.
officers and professors at Military Academy,
1463.
pension agents, 2212.
staff officers of militia of District of Columbia,
1714.
superintendents of armories, 1190.
army retiring board, 1306, 1310-1313.
assignments to command, 566-569.
assistants to engineer commissioner of District
of Columbia, 1016.
authority to —
accept quotas of troops of the States and Ter-
ritories, etc., 523.
appoint additional paymasters, 793.
assistant treasurers, 286.
chaplains, 1258.
Civil Service Commissioners, 146.
commissioner to prepare a new edition of
the Revised Statutes, 469.
commissioners to revise, etc., general laws
of the United States, 454.
general officers, 559, 560.
natives to commissions, 503.
officers of Regular Army in volunteer organ-
izations, 521.
officers to vacancies in chief of staff corps
or department, 575.
Postmaster-General, 313.
Solicitor-General, 333.
staff officers for corps, division, and bri-
gade commanders, 532.
or continue in service, officers of volunteer
staff, 548.
volunteer surgeons, 900.
assign an officer to act as adjutant-general,
militia of District of Columbia, 1715.
call for volunteers, 517.
call out militia in case ol invasion, etc., 1669,
2016-2020.
close ports of entry, 2045.
confer commissions by brevet, etc., 1342, 1343.
INDEX.
1141
President— Continued,
authority to —
continue, for service in Philippine Islands,
five volunteer signal officers, 1219.
designate officer to act as chief of bureau,
121.
officer to act in absence of Secretary of
War, 119.
officer to act as superintendent of State,
War, and Navy Building, 139.
supervisor of New York Harbor, 1143.
detail naval officers for service in War De- I
partment, 448.
officers as Indian agents, 1333.
officers to college duty, 1288-1291, 1294.
direct duties of Marine Corps, 443.
duties of Paymaster-General, 799.
duties, etc., of cadets, 1490.
enlist Indians, 506.
natives in Philippine Islands, 501; pp. 1064,
1065.
fill vacancies in Marine Corps, 422.
grant certificates of merit, 1358.
conditional pardon, 1808, note (p. 700).
increase sergeants in engineer companies, 969.
corporals, 969.
first-class privates, 969.
second-class privates, 969.
bonds of disbursing officers, 592.
bonds of district attorneys, collectors of cus
toms, etc., 593.
infantry companies, 1451.
investigate Isthmus of Panama, etc., 1082, 1083.
issue rations to Indians, 774.
license or permit commercial intercourse,
2032.
maintain enlisted force at maximum strength,
etc., 1453.
make rules for Washington Aqueduct, 996.
and publish regulations for Army, 487.
order discharge of debtor, 249.
organize Army corps, 529, 571.
militia when called into service, 1675-1677.
Porto Rican regiment, 505.
prescribe limit of punishment, 1838.
kind, quantity, and components of rations,
769, 770.
military regulations for discipline of Marine
Corps, 444.
system of examination of enlisted men for
promotion, 1278.
system of examination of officers for pro-
motion, 1274.
uniform of the Army, etc., 749.
procure assent of State to purchase of land,
1595.
releases from persons holding lands for
United States, 1596.
promote absent officers, 588.
provide cemetery near City of Mexico, etc.,
2463, 2464.
raise volunteers, under act of March 2, 1899,
543.
regulate admissions to the civil service, 142.
remove, etc., unauthorized inclosures to pub-
Ijc lands, 1609.
President — Continued,
authority to—
require advice and opinion of Attorney-Gen-
eral, 336.
select and detail chief of artillery, 1431.
governors and officers of Soldiers' Home,
2268.
specify period for which militia shall serve,
1673.
suspend commercial intercourse, 2029.
temporarily increase the Army, 515.
transfer engineers, 960.
Board of Ordnance and Fortifications, appoint-
ment of civilian member of, 1213.
to determine strength and value of iron, steel,
etc., appointment of, 1205.
brevets, 1342, 1343.
California Debris Commission, appointment of,
1049.
chaplain at Military Academy, appointment
of, 1461.
chaplains, authority to appoint, 1258.
clothing allowance, 749.
collection of duties on imports, 2042, 2046.
commercial intercourse, authority to license
and permit, 2032.
authority to suspend, 2029.
commissions, 10.
Commissioners of District of Columbia, ap-
pointment of, 1011.
courts-martial—
appointing power, 1789.
detached marine officers serving on, 1794.
reviewing authority, 1831, 1834, 1845-1849.
detail of retired officer as adjutant-general,
District of Columbia militia, 1323, 1716.
discharge of poor debtors, 248, 249.
District of Columbia militia, 1712-1716.
employment of military force to—
aid in execution of judicial process, etc., 2063.
apprehend, etc., persons in Indian country,
2026.
arrest absconding Indians, etc., 2028.
collect customs duties, 2044.
compel foreign vessels to depart, 2086.
preserve neutrality, 2085.
protect rights of discoverers, etc., of guano
deposits, 2101.
protect timber on public lands in Florida,
2069.
remove intruders from Indian reservations,
2023.
remove trespassers upon public lands, 2070.
remove unlawful inclosures to public lands
2070.
employment of retired officers on active duty,
1322.
erection of temporary forts in case of emer-
gency, 1088.
examination of enlisted men for promotion,
1278-1282.
examination of officers for promotion, 583,
1274-1277.
executive powers, 1.
extradition, protection of accused person, 2090.
guano islands, protection of rights of discov-
erers, etc., 2101.
1142
INDEX.
President— Continued.
Indian affairs, additional security from dis-
bursing officers, 1915.
agencies, consolidation of, 1917.
transfer or discontinuance of, 1918.
agents, appointment of, 1898.
Army officers detailed to act as, 1903, 1904.
and superintendents, dispensing with serv-
ices of, 1916.
country, removal of persons found therein,
2001.
inspectors, appointment of, 1896.
lands, disposal of dead and fallen timber,
2000.
removal of unauthorized settlers on, 1952.
reservations, removal of intruders from, 2023.
tribes-
abrogation of treaty with, 1923.
authority to prohibit introduction of goods
into, 1956.
general superintendence over certain, 1944.
mode of disbursements, 1932.
payment of annuities in goods, 1925.
Indians, permission to enter State of Texas,
2010.
Light-House Board, appointment of, 1021.
light-houses, detail of officer to construct, etc.,
1022.
limit of punishment, authority to prescribe,
1838.
under 17th Article of War, 755, 1649.
militia-
apportionment of, among States, 2021.
authority to specify time of service of, 1673.
calling forth, 1669-1674, 2016-2020.
District of Columbia, appointment of com-
manding general of, 1713.
District of Columbia, appointment of staff
officers of, 1714.
employment of, in execution of judicial proc-
ess, 2063.
organization of, when called into service,
1675-1677.
Mississippi River Commission, appointment of,
1030.
Missouri River Commission, appointment of,
1045.
National Home for Disabled Volunteer Soldiers,
board of managers, 2287.
notification of appointments, 11.
officers dropped for desertion by, 1329, 1230.
pardon, conditional, 1808, note (p. 700).
pardoning power, 2.
power as commander in chief, 2.
power of, to fill temporary vacancies, 13, 15, 16.
ration, power to prescribe, 769.
rations to Indians, 774.
regulations for admission to civil service, 142.
release of citizens imprisoned by foreign gov-
ernments, 1879.
removal from office, 4.
removal of custom-house, 2043.
retirement of officers, 1297, 1298, 1301, 1305.
reviewing authority, 1845-1848.
rules and regulations for naval hospital at Hot
Springs, 938.
sale of damaged or unsuitable property, 1641.
sale, etc., of abandoned and useless military
reservations, 1616.
President— Con tinued .
speedy arrest and trial, 2062.
special assignment to duty according to brevet
rank, 566.
succession to office, 5-7.
suspension of commercial intercourse, 2029.
term of office, 3.
treaty-making power, 7.
Volunteer Homes, 2287.
when authorized to increase the Army, 509.
when authorized to increase the number of
second lieutenants, 511.
Printing:
how executed, 716.
Priority of Debts Due United States, 245-247.
Prisoners (see Penitentiary) :
confinement, 1783-1786.
release without authority, 1787, 1788.
Private Property:
claims for, lost, 221, 222.
Proceeds of Sales (see Sales, and Sales of Subsist-
ence) :
disposition, 611-616.
reports of, 75.
subsistence, 785-787.
Professors at Military Academy (see Military
Academy):
allowances, 1471.
appointment, 1463.
assignment of professor of law, 1459.
assistant professors, 1474, 1475.
command, 1470.
leaves of absence, 1501.
pay, 1471.
retirement, 1473.
Property (see Accountability, Accounting Officers,
and Property Accountability):
accountability, 1631-1636.
arms, damages to, 1638.
concealment, 661.
condemned, disposition of, 1641.
damage to, 1637-1640.
damaged, disposition, 1641.
deficiency in, 1637-1640.
disposition, 1631.
embezzlement, 660, 1642.
exchange, without authority, 1646.
larceny, 1642, 1645.
losing, spoiling arms, etc., 1647.
lost, claims for, 221, 222.
offenses in connection with public, 1642-1649.
ordnance, accountability, 1172-1176.
regulations for returns of, 1636.
robbery, 1645.
sales of damaged, 1641.
selling, losing, etc-., 1647-1649.
Signal Corps, regulations for, 1228.
stolen, receiving, 1643.
transportation, 720, 725-727.
unlawful sale, 1646.
wrongful conversion, 1644.
volunteer officers, 540.
Property Accountability (see Accountability, and
Accounting Officers) :
certificate of charges, 1633, 1634.
company commander, 1632.
oaths, administration of, 1639.
INDEX.
1143
Property Accountability— Continued.
regulations, 1636.
returns, 1633, 1635.
Provisional Regiment in Porto Rico, p. 1065.
Public Animals:
number of, restriction, 728, 730-732.
purchases, 729-732.
restriction on purchases, 728-732.
Public Buildings (see Buildings, Contracts, and
Public Buildings and Grounds) :
closing for death of ex-officer prohibited, 98.
draping in mourning prohibited, 97.
Public Buildings and Grounds (see Buildings, and
Public Buildings) :
ailanthus trees, 985.
annual report, 987.
Commissioner of, 982.
control in Chief Engineer, 978.
employees, restriction, 980.
estimates, 979.
extra pay prohibited, 993.
furniture for Executive Mansion, 988.
inventory, annual, 989.
Potomac Park, 981-983.
propagation of plants and shrubs, 986.
supervision, 978.
Washington Monument, 990-992.
watchmen in public squares, 984.
Public Lands (see Acquisition of Lands, and
Lands) :
acquisition, 1593-1599.
designation, 1581-1583.
disposition of, 1581-1592, 1614-1620.
donations of sites for fortifications, 1087.
entry, 1581-1583.
fortifications, sites for, 1086-1088.
homesteads, 1584-1592.
inclosure without authority, 2069, 2070.
leases, 1620.
offenses in connection with, 1602-1614.
purchases for river and harbor works, 1106.
removal of trespassers, 2071.
timber, unlawful felling, 2069.
Public Moneys (see Accounts, Funds, and Treasury
Department):
advances, 617, 618.
assistant treasurers, 286.
checks, 309-311.
conversion, 646.
deposit, 299-303, 606-610.
depositories, 289, 290.
disbursing agents, 291-295a.
embezzlement, 660.
exchanges, 609, 610.
failure to deposit, 649, 650.
failure to safely keep, etc., 646, 647.
inspection of disbursements, 685, 686.
larceny, 660.
loaning, 646.
mints to be depositories, 289, 290.
national banks as depositories, 289.
outstanding checks, 309-311.
short payments, 644.
subject to draft of Treasurer, 298.
transfers of funds, 296-298.
Treasurer of the United States, 283, 284.
unlawful depositing, 645.
unlawful receipt of, by banker, 654, 655.
Public Works (see Engineer Department):
anchoring vessels, 1126, 1127.
bridges over navigable waters, 1114-1117.
canajs, operation of, 1111-1113.
contracts and purchases, 1104-1106.
deposits in navigable waters, 1124.
estimates, 71.
harbor lines, 1118-1121.
injuries to, 1122-1132.
inspection of, 680, 686.
obstructions to navigation, 1122-1132.
offenses in connection with—
anchoring vessels, 1126.
deposits in navigable waters, 1124.
logs, floating, 1128, 1129.
obstructions to navigation, 1122..
penal clauses, 1123, 1127.
prosecutions for, conduct of, 1132.
timber, floating, etc., 1128, 1129.
use of public works, 1125.
permits to use, 1125.
river and harbor works, 1098-1110.
use of, permits, 1125.
Punishment:
limits of, 1838.
restriction on, pp. 1067-1073.
Purchase of Discharges, 1386.
Purchases (see Contracts):
advertising, 1529-1533.
American material preferred, 1642.
artillery horses, 1544, 1545.
assignments, 1567.
bakeries, 1550.
bids and proposals, 1534-1538.
bonds to secure payment for labor and materi-
als, 1576, 1577.
buiMings, erection and repair, 1522.
cavalry horses, 1544, 1545.
control of Secretary of War, 1520.
draft animals, 1546.
drays, 729.
eight-hour law, 1672-1575.
envelopes, by Postmaster-General, 328.
from Indians, 718.
gardens, 1551.
general provisions, 1520-1528.
Indians, purchases from, 1554.
inspection of fuel, 1578-1580.
land purchases, 1523, 1524.
medical supplies, 932, 933.
Military Academy, 1505.
names of contractors, 1555.
offenses in connection with, 1558-1566.
ordnance, 1169-1171.
preparation and execution of contracts, 1539-
1541.
restriction on expenditures, 1549.
schools, 1550.
seagoing vessels, 729.
ships, 729.
steel, purchases of, 1553.
the returns office, 1567-1570.
transportation, means of, 1547.
of stores, 1548.
wagons, 729.
when made, 1544.
(Quarantine :
enforcement of 2068.
1144
INDEX.
Quartermaster-General (see Quartermaster's De-
partment) :
absence of, performance of duty, 121.
Quartermaster-General's Office:
clerical force, 134.
Quartermaster's Department (see Staff Depart-
ments):
advertisements, 712.
animals, procurement of, 728-732.
appointments, 578.
Antietam battlefield, supervision, 2422.
bakeries, 714.
barracks and quarters, 734-739.
bond-aided railroads, 722, 725.
civilian employees, 748.
clothing, 749-757.
clothing, purchases,717.
composition, 702.
deduction from mileage accounts, 723.
details, 704, 705.
duties, 708-711.
emergency purchases, 713.
enlisted men, 707.
examinations for promotion, 703.
extra-duty pay, 742-747.
forage, 740, 741.
fuel, 740, 741.
general army service men, 1509-1511.
historical note, p. 290.
horses, 728-732.
Indians, purchases from, 718.
land-grant railroads, 722, 725.
military storekeeper, 706.
officers not to trade, 719.
organization, 702; p. 1054.
post quartermaster-sergeants, 707.
printing, 716. ^
procurement of supplies, 708-710, 712-719.
promotions, 703.
public animals, 728-732.
purchases, 712-719.
quarters, 734-739.
returns of clothing, etc., 751.
schools, purchases for, 714.
subsistence duty of officers, 711.
supplies, 708-710, 712-719.
tables of distances, 724.
transportation, 720-727.
veterinarians, 733.
volunteer quartermasters, retention of, 702,
note.
working parties, 742-747.
Quarters (see Commutation of Quarters) :
absent officers, 739.
allowance, 738, note.
commutation, 830-835.
furnished to officers in kind, 738.
hospital stewards, 736, 931.
Bank (see Relative Rank):
brevet, 1342-1347.
command of detachments, 551 ; 122 A. W.
medical officers, 901.
militia officers, 1658.
relative, Army and Navy, 564.
volunteers, 562.
Bates of Postage, 317.
soldiers' letters, 317.
Batlons (see Subsistence Department):
allowance to enlisted men, 771, 772.
coffee and sugar, 775-777.
commutation, 776, 777.
components, 769, 770.
emergency, 770.
field, 770.
garrison, 770.
Indians, 774.
issues, 770-777.
marines, 439-441.
matrons, 773.
meat components, 770.
nurses, 773.
on transports, 770.
prescribed by President, 769.
sales, 779.
substitutions, 770.
sugar and coffee, 775-777.
Bear- Admiral:
relative rank, 564.
Receiving Embezzled Money or Property, 661.
Kerch In ir Stolen Property, 1643.
Becess Appointments, 8, 9, 163, 164.
salaries, 163, 164.
Becord and Pension Office:
certificates of service in telegraph corps, 1257.
clerical force, employment, 134, note; 1240.
composition, 1236.
duties, 1235, 1237-1239.
establishment, 1235.
muster rolls of volunteers, etc., 526, 1238, 1239
organization, 1236; p. 1060.
removal of charge of desertion, 1241-1253.
remuster of officers, of volunteers, 1254-1256.
returns and muster rolls of volunteers, 526.
returns of volunteer regiments, 1238. 1239.
Becord of Court-Martial, 1839-1841 (see General
Courts-Martial, Judge-Advocate General's De-
partment, and Judge- Advocates of Courts'):
authentication of, 1839, note.
copy to accused, 1840.
disposition, 1839, 1841.
preparation, 1839.
Becording Clocks, 95.
Becords (see Record of Court- Martial):
destruction, forgery, etc., 103-105.
Executive Departments, 20.
Becovery of Debts, 197. (See Debts Due United
States.)
Becrulting Service (see Recruits) •
bounty, 677.
details for, 679.
enlistments, qualifications for, 67l), 671.
fraudulent enlistments, 675.
minors, enlistment of, 672, 673.
oath of enlistment, 676.
re-enlistments, 1373-1375.
restriction on enlistment, 678,
term of enlistment, 669.
unlawful enlistments. 674.
volunteers, 525.
Becruits (see Recruiting Service) :
credit to, at depots, 890.
Bed Cross Society, pp. 1044-1047.
Bedress of Wrongs, 1852; 30 A. W.
Beductlon of War Establishments, 513.
INDEX.
1145
Re-enlistments (see Enlisted Men, and Enlist-
ments):
conditions, 868-870, 1373-1375.
continuous seryice, 869, 1375.
pay, 868-870, 1374.
previous service, 1370.
Regimental Court-Martial, 1851, 1852; 30, 81 A. W.
(See Inferior Courts.)
•Regiments :
cavalry, 1419-1424.
infantry, 1445-1448.
Register (see Army Register) :
official, 92a.
Registry of Official Mail, 328.
Regular Army. (See Army):
composition, 497,499-508^
increase in war, 509-512.
Indian scouts, 506.
native troops, 501-505.
reduction at end of war, 513.
Regulations (see Army Regulations):
Army, 487-489.
accounting, 207, 208.
canals, use of, 1112, 1113. „
executive departments, 20.
use of public works, 1112, 1113.
Relative Rank (see Rank):
Army and Navy officers, 564.
of officers, 565.
Reorganization of Army:
act for, pp. 1048-1066.
Reporter:
courts-martial, 1801.
Reports:
accounts outstanding, 304.
annual, date of submission, 90.
chief clerks, 21-23.
civil engineers, names, etc., 974.
claims allowed, 220.
condition of business, 88.
contingent expenditures, 59, 60.
delinquent disbursing officers, 188.
employees, efficiency of, 89.
illustrations, etc., 91.
inspection of disbursements, 626.
maps, illustrations, etc., 91.
persons employed in public buildings, 269.
receipts and expenditures, 189.
rented buildings, 270.
scope, 86.
Reprieves, 2.
Requisitions for Funds, 61, 209.
Reservations (see Indian Reservations, and Public
Lands) :
abandoned, sale of, 1615-1617.
breaking fences, 1603.
disposition of, 1615-1619.
driving cattle on, 1603.
establishment, 1583, note.
grants to municipal corporations, 1618.
jurisdiction over, 1600, 1601.
leases, 1620.
licenses, 1620.
military posts, 1621-1630.
penal offenses in connection with, 1602-1614.
protection of, 1602-1614.
revocable licenses, 1620.
Reservations— Continued.
rights of way over, 1619.
setting fires on, 1612-1614.
timber, cutting and injuring, 1602.
unlawful inclosures, 16Q5-1609.
Residence:
certificate of (see Civil Service), 154.
Resignations of Officers, 1326, 1327.
Restriction on Punishments, pp. 1067-1073.
strength of Army, p. 1064.
Retained Pay:
prohibition, 867.
Retired Enlisted Men:
allowances, 1382.
pay, 1379.
service for, 1379-1381.
Retired Officers:
adjutant-general District of Columbia militia,
1323.
assignment to duty.
College details, 1290-1295.
Soldiers Home, 1320.
time of war, 1322.
clerks to, forbidden, 1325.
college details, 1290-1295.
copies from files in evidence, 1832.
details to colleges, 1290-1295.
eligibility to office, 1321, 1324.
holding office, restriction, 1324.
liabilities, 1319.
pay, 1316.
restriction on holding office, 1324.
retirement on actual rank, 1314, 1315.
rights, 1319.
status, 1317.
vacancies caused by, 1318.
Retirement of Officers:
disability, 1305.
for age, 1298-1300.
forty years' service, 1297.
forty -five years' service, 1298.
heads of staff departments, 1304.
limited list, 1301, 1302.
pay on, 824.
physical disqualification, 584.
service for, 1303.
thirty years' service, 1297.
unlimited list, 1300-1302.
Retiring Boards (see Retirement of Officers):
composition, 1306.
disability incident to service, 1311.
not incident to service, 1312.
duties, 1308.
findings, 1309, 1311, 1312.
Marine Corps, 433.
oaths, 1307.
officer entitled to hearing, 1313.
powers, 1308.
revision of finding by President, 1310.
Returns (see Articles of War, and Property Ac-
countability) :
militia, 1664-1668.
property, 1633-1636.
Returns Office, 1567-1570.
Reviewing Authority (see General Courts- Martial):
approval of sentence, 1843-1847.
confirmation of sentence, 1846-1849.
1146
INDEX.
Reviewing Authority— Continued.
dismissal of officer, 1848, 1849.
President, power of, 1845-1848.
suspension of sentence, 1850.
Revised Statutes (see Statutes at Large):
accrued rights reserved, 464.
acts of limitation, 466.
arrangement and classification, 467.
certificate, 461.
copies to be evidence, 459.
date, 468.
edition of 1874, 454-468.
1878, 469-473.
evidential value, 459, 472,473.
new edition (1878), 469-473.
prima facie evidence of laws, 473.
prosecutions and punishments, 465.
repealing clause, 463.
revision, 454-458.
scope, 462, 468.
Supplement of 1891, 476, 477.
1895, 478.
1899, 479, 480.
_, Supplements, 474-480.
title of revision, 460.
Revision:
proceedings in, 1842.
Revocable Licenses, 1620.
Rewards (see Deserters):
apprehension of convicts, deserters, 1407-1409.
Rights of Way Over Reservations, 1619, 1620.
River and Harbor Works (see Engineer Depart-
ment, and Navigable Waters of the United
States):
commercial statistics, 1107.
contracts and purchases, 1104-1106.
deterioration, reports of, 1108.
estimates, 71, 76, 1102.
fishways, 1109.
preliminary surveys, 1098-1101.
reports, 132, 1098, 1103.
surveys, reports, 1098.
surveys, restrictions on, 1098-1101.
Salaries (see Office):
assistant messengers, 38.
clerks, 38.
clerks and employees in Executive Depart-
ments, 38-42.
disbursing clerks, 24*
double, 166.
extra allowances, 169.
extra services, 40.
holding two offices, 167.
messengers, 38.
officers holding over, 165.
officers in arrears, 170.
recess appointees, 163, 164.
restrictions on, 28, 38-42.
temporary clerks, 39.
watchmen, 38.
Sales (see Proceeds of Sales, and Sales of Subsist-
ence):
credit, 764, 778, 782-784.
disposition of proceeds, 611-616.
medical supplies, 934, 936.
ordnance, 1177, 1178.
reports of proceeds, 75.
Sales— Continued,
smooth-bore cannon, 1187.
tobacco, 780, 784.
Sales of Subsistence (see Proceeds of Sales, and
Sales):
cash, 778-781.
proceeds, 785.
rates, 781.
School Teachers:
extra-duty pay, 742, 745.
Schools (see Post Schools, and Service Schools):
expenditures, 1627.
pay of teachers, 742, 745.
Scouts (see Indian Scouts), 506.
Seagoing vessels:
purchases, 729.
Seamen:
issues of subsistence, 766.
Seal of the United States, 2468.
custody of, 2469.
Sea Travel, 811, 850, 851.
on discharge, 850, 851.
Secretary of the Interior (see Interior Depart-
' ment):
duties, 452, 453.
Secretary of the Treasury (see Treasury Depart-
ment):
Book of Estimates, 61, 62, 64-78.
claims allowed, reports of, 70, 220.
delinquent disbursing officers, report, 188.
estimates, 62-78.
notification of appointments, 11.
receipts and expenditures, report, 189.
rendition of accounts, 187.
rules for accounting, 207.
transfers of funds, 296-298.
Secretary of War (see War Department):
abolishment of arsenals, 1194.
acquisition of lands, etc., for fortifications,
1086, 1087, 1599.
national military parks, 2382-2384, 2386. 2389,
2397, 2408.
river and harbor improvements, 1106.
advances to troops to embark for Philippine
Islands, 618, 813.
allowances of fuel and forage, 740.
annual reports, 86-92, 129-133.
Antietam battlefield —
appointment of superintendent, 2422.
compensation of superintendent, 2422.
application of appropriations for rivers and
harbors, 1104.
appropriations for Washington Aqueduct, 1003.
Arlington National Cemetery, interments in,
2460.
army retiring board, 1306.
assignment of judge-advocate to be professor of
law, 698.
retired officer to duty at Soldiers' Home, 1320.
assistant quartermasters to do duty as commis-
saries of subsistence, 711.
surgeons, appointment of board for examina-
tion of, 902.
authority to —
abolish useless or unnecessary arsenals, 1194.
alter distribution of clerks, etc., 36.
amend military record of soldier, 1248.
INDEX.
1147
Secretary of War— Continued,
authority to—
appoint commissioners for national military
parks, 2398, 2410.
expert accountant, 684.
hospital stewards, 915, 917.
superintendent to nurse corps, 925.
assess vessels at Fort Monroe, 1517.
build machine for testing iron, etc., 1207.
codify and publish regulations of the Army
489.
commute rations, 776.
credit States, etc., with the sum charged to
them for arms, etc., 1703.
deliver condemned cannon to national mili-
tary parks, etc., 2377, 2405, 2406.
designate chief clerk to sign requisitions, etc.,
120.
detail employee as telegraph operator, 101.
employee to administer oath, 128, 1639.
officers and enlisted men to establish post
school, 1627.
privates of hospital corps, 924.
quartermaster and commissary of cadets,
1478.
troops to protect Yellowstone National
Park, 2445, 2447.
determine caliber, etc., of guns, 1186.
what constitutes duty without troops, 830
842.
direct the establishment of military head-
quarters, 574.
transportation of troops, etc., 126.
discharge volunteer medical officers, 900.
distribute proper quota of arms, etc., to cer-
tain States, 1702.
employ clerks, etc., 25.
skilled draftsmen, etc., in office of Chief of
Engineers, 976.
veterinarians, 733.
enlist privates in hospital corps, etc., 922.
establish harbor lines, 1118.
school of cavalry, etc., 1519.
exchange or sell unserviceable powder and
shot, 1177.
extend hours of labor, 52, 53.
grant certain privileges on military reserva,
tions, 1620.
leaves of absence, 43, 44.
temporary use of Potomac Park, 982.
increase pay of nurses serving as chief nurses
927.
issue arms to border States, 1780.
Executive Departments, 1204.
Territories, 1780, 1781.
certificates of discharge, 1389.
medals of honor, 1357.
ordnance, etc., to colleges, 1292, 1296.
stores, arms, etc., to militia District of
Columbia, 1740.
subpoenas to witnesses, 110.
lease public property, 1620.
loan or give condemned ordnance, etc., 1182.
make regulations, etc., 20,23.
requisitions for official stamps, 99.
permit deposits of material in navigable
waters, 1124.
Secretary of War— Continued,
authority to—
permit enlisted men to make allotments of
their pay, 871.
temporary occupation or use of public
works, 1125.
volunteer regiments to retain regimental
• colors, 542.
prescribe kinds and amounts of purchases,
125.
purchase breech-loading steel guns, 1189.
purchase from Indians, 718, 1554.
refer questions of law to Attorney-General,
338.
remove charge of desertion, 1242.
rent buildings, 94.
replace ordnance, etc., used by volunteers,
1203, 1701.
require monthly reports, 53.
opinion of Attorney-General, 337.
select board of ordnance and fortifications,
1209-1211.
ordnance sergeants, 1163.
post commissary sergeants, 762.
sell, for experimental purposes, smoothbore
cannon, 1187.
bidders, report of , 131.
bond, bidder may be required to furnish, 1535.
buildings for religious worship on West Point
military reservation, 1513.
bridges, etc., over navigable waters, 1114, 1115,
1117.
California Debris Commission, 1055, 1073, 1078-
1080.
canals, etc., use of public funds for operation
and repair of, 1111.
captured flags, disposition, 124.
certificates of service in military telegraph
corps, 1257.
charts, maps, etc., sale of, 140.
Chickamauga and Chattanooga National
Park-
authority to grant right of way in, 2378.
reduction of area of, etc., 2365.
regulations for care, etc., of, 2363.
use of land by owners, 2359.
civilian employees, restriction on employment
of, 748.
clerical force, 21-53.
clerks at headquarters, 572, 573.
commutation of rations, 776, 777.
contingencies of Army, report of expenditures,
130.
contingent funds, 54-60.
contracts, American material to be preferred,
1542.
contracts to be in writing, etc., 1539, 1567.-
contracts and purchases, 1520.
construction of lines of telegraph subject to ap-
proval of, 127.
quarters for hospital stewards, 736, 931.
control and supervision of transportation of
troops, etc., 720.
1148
INDEX.
Secretary of War — Continued,
detachments of enlisted men at Military Acad-
emy, 1510.
detail of employee to administer oaths, 128.
enlisted men for duty at recruiting stations,
679.
discharge of enlisted men, with travel pay, by,
541.
duties, 117, 122-128.
performance of, in absence, 119, 120.
duty without troops, authority to determine
what constitutes, 830, 842.
enlistment of sergeants, corporals, etc., of ord-
nance, 1164.
estimates, 62-78.
expenditures, report of, 129.
fish ways, construction of, in discretion of, 1109.
Gettysburg National Park, improvement of
roads, 2387.
specimens of arms, etc., used in battle, 2388.
gratuitous issues of clothing, 750.
horses, purchase of, 730, 1544, 1545.
Indian country, introduction of liquor into,
1977.
inquiry as to disposition of arms, etc., issued to
States, etc., 1704.
insane persons, admission of, to Government
Hospital for the Insane, 2344.
insane persons, care of, in California State asy-
lums, 2348.
inspection of disbursements, 625.
introduction of liquor to Indian country, 1977-
1979.
judge-advocate, assignment of, to be professor
of law, 1459.
leasing of lands of national military parks, 2374,
2390, 2403, 2409.
leases of public property, 1620.
leaves of absence to officers, on full pay, 827,
1287.
limit of expenditures on buildings and grounds,
1549, 1624.
medical officers, assignment to duty by, 910.
messengers at headquarters, 572, 573.
military affairs, control of, 122.
militia-
apportionment of appropriation for, 1693.
disposition of unserviceable or unsuitable
arms, etc., 1696.
District of Columbia, disposing of unservice-
able property, 1746.
issue of arms, etc., to 1740.
subsistence while on duty, 1768.
use of Washington Barracks by, 1755.
issue of arms, etc., to Territories, 1780, 1781.
arms, etc., to Territories and border States,
1780.
ordnance to, for practice, 1705.
Springfield rifles to governors of States for,
1700.
purchase of stores, etc., for, by State, 1697.
purchase or manufacture of arms, etc., for,
1694.
returns of, 133, 1668, 1695.
Mississippi River, appropriation for works on,
etc., 1040, 1043.
and tributaries, water gauges on, 1038.
Secretary of War— Continued.
Mississippi River— Continued,
rules, etc., for navigation of south pans, 1041,
1042.
Commission, detail of secretary for, 1035.
Missouri River Commission, detail of secretary
for, 1047.
national cemeteries-
acquisition of lands for, 2449, 2451.
appointment of superintendents of, 2452.
authority over, 2448-2457, 2459, 2460.
compensation, etc., of superintendents of
2454.
delivery of condemned cannon to, 2377,2405,
2406.
estimates, 2448.
interment of nurses, 2460.
National Home for Disabled Volunteer Sol-
diers—
board of managers of, 2287.
delivery of obsolete cannon to, 2335.
inspection of, 2295.
national military parks-
acquisition of land, 2382-2384, 2386, 2389, 2397,
2408.
approval of battle lines, etc., 2370, 2385, 2386,
2401.
authority over, 2358, 2397, 2398, 2419-2421.
authority to accept land for, 2375, *2379, 2380.
authority to appoint commissioners for, 2398,
2410.
compensation of commissioners, 2360, 2381,
2398, 2410.
erection of monuments, etc., 2385, 2386, 2391-
2395, 2401, 2402.
leasing of lands of, 2374, 2390, 2403, 2409.
supervision of commissioners of, 2360-2361,
2381.
use of, for military maneuvers, 2349-2351.
notice to remove obstructions to navigation,
1132.
office, 117.
payments by express, 803.
performance of duties, 13, 15-18.
private cemeteries, erection of headstones over
soldiers in, etc., 2456, 2457.
Potomac Park to be under charge of, 982.
records, custody of, 123.
regulations for—
deposits by soldiers to be made by, 881.
examination of cadet appointees, 1482.
use of canals, 1112, 1113.
removal of obstructions to navigation, 1132,
1133.
reports, 66, 73-78, 86-92, 129-133.
retiring bonds, 1306.
revocable licenses, 1620.
reward for apprehension of deserters, 1409.
river and harbor works, report, 132.
rules for examination of accounts, 634.
rules and regulations —
concerning bids for contracts, 1534.
floating of logs, rafts, etc., 1129.
operation of drawbridges, 1117.
use and navigation of canals, etc., 1112.
sale of damaged or unsuitable military stores,
1641.
INDEX.
1149
Secretary of War— Continued,
sale of smooth-bore cannon, 1187.
Soldiers' Home, limit to expenditures, 2285.
supplies, procurement of, 125, 709, 1516.
telegraph lines, 127.
text-books, etc., for artillery school, 1516.
text-books, etc., for cavalry school at Fort
Leavenworth, 1518.
transportation of—
remains of deceased civilian employees, 1418.
remains of deceased officers and soldiers,
1416,1418.
stores, etc., 125,126. '
transportation to persons entitled to artificial
limbs, 947.
travel without troops, 842.
vacancy in office, 13-17.
Security Companies as Sureties, 594-601.
Senate, Secretary of:
duties, lla.
Senators:
franking privilege, 322-325.
Sentences (see Articles of War, and General Courts-
Martial):
branding, 1833.
confinement in penitentiary, 1837.
death, 1832.
dismissal, 1834, 1835.
flogging, 1833.
general officers, 1831.
marking, 1833.
publication, 1835.
suspension of, 1850.
suspension of officers, 1836.
tattooing, 1833.
Servants:
enlisted men not to be used as, 1413.
Service Schools (see Post Schools, and Schools):
army war college, 1514.
artillery school, 1516, 1517.
cavalry and light artillery school, 1519.
engineer school, 1515.
infantry and cavalry school, 1518.
Services (see War Service) :
restriction on employment of, 26-31.
voluntary, not to be accepted, 29.
Set-off in Adjustment of Claims, 233.
Shiloh National Military Park, 2396-2405.
acquisition of lands, 2397.
appropriation, 2404.
commissioners, appointment, 2398.
compensation, 2398.
duties, 2399.
location of office, 2400, 2401.
condemned cannon, balls, etc, 2405.
designation, 2396.
extent, 2396.
injuries to monuments, trees, etc., 2402.
leases, 2403.
marking lines of battle, 2401.
offices, location of, 2400, 2401.
Short Payments, 644.
Sick Leaves, 1286. (See Leaves of Absence. )
clerks, etc., 43-45.
Signal Corps (see Chief Signal Officer, Signal De-
partment, and Signal Office):
appointments, 1221.
details, 1222, 1223.
duties, 1227-1230.
enlisted men, 1218, 1224.
examinations for promotion, 1221.
historical note, p. 464.
increase in time of war, 1225, 1226.
organization, 1218, 1219; p 1059.
promotions, 1220, 1221.
promotion, fourteen years' service, 591.
property accountability, 1229.
telegraph lines, 1231-1234.
volunteer force, 1219.
Signal Department (see Chief Signal Officer, and
Signal Corps):
maps, sale of, 141.
Signal Office (see Signal Corps, and Signal Depart-
ment):
clerical force, 134, note.
Soldiers (see Enlisted Men):
honorably discharged, recommended for em-
ployment, 144.
Soldiers' Letters:
rates of postage, 317.
Soldiers' Home (see National Homes):
admission and discharge, 2275-2278.
board of commissioners, 2263.
deductions for, 889.
discipline, 2283.
funds for support of, 2269-2274.
inspections, 689, 2266.
officers, 2267, 2268.
• outdoor relief , 2279.
pensions to inmates, 2280-2282.
restriction on buildings, 2285.
restriction on sale of liquor near, 2286.
uniform of inmates, 2284.
Solicitor- General (see Attorney- General), 333.
South Mountain:
marking lines of battle, 2419.
Southern Pacific Railroad, 2067.
Special Delivery Stamps, 318, 319.
Squadrons:
cavalry, 1419, 1425.
Staff (see Staff Departments) :
chief of, 558, note 1.
volunteers, 519, 530-534.
Staff Departments (see Commissioned Officers):
appointments, 578.
details in, 579-582, 1285.
disbursing officers, 592-661.
examinations for appointment-
detail, 580.
promotion, 579, 583-588.
promotions in, 579, 591.
restriction in appointments to, 578.
transfers to, 589, 590.
Stamps:
official, 99.
State Department, 12.
State Homes, 2321-2324. (See National Homes, and
Soldiers' Home.)
States:
claims for war expenses, 223-230.
distribution of arms to, 1195.
1150
INDEX.
States — Continued.
issues of ordnance to, 1179.
records of, as evidence, 1826.
replacing arms used by, 1203.
sales of ordnance to, 1180, 1181.
Stationery:
purchases of, 82.
Statutes at Large, 481-486. ( See Revised Statutes. )
distribution, 482.
evidential value, 483-485.
presentation of copies, 182, 486.
publication, 481.
sale, 482.
Stoppages (see Pay Department, and Pay of En-
listed Men):
commissioned officers, 850-856.
enlisted men, 889-898.
Subsistence (see Subsistence Department) :
claims of States for reimbursement, 2*27.
militia, 1681, 1682.
purchases of, 1552.
retired enlisted men, 1382.
Subsistence Department (see Staff Departments):
articles for sales, designation, 690.
commutation of rations, 789, 791.
composition, 758.
credit sales, 764, 778, 782-784.
details, 760, 761.
duties, 763-768.
emergency purchases, 768.
examinations for promotion, 759.
exceptional articles, 765.
historical note, p. 305.
issues of rations, 770-777.
issues to seamen and marines, 766.
officers not to trade, 767.
organization, 758; p. 1055.
post commissary-sergeants, 762.
proceeds of sales, 612, 613.
promotions, 759.
purchases, 763-765, 767, 768.
quartermasters to perform duty in, 711.
rations, 769-777.
sales, 778-784.
sales to officers and enlisted men, 764, 765.
stoppages, 895, 896.
tobacco, sales of, 780, 784.
Substitution Issues, 770.
Summary Court, 1855-1861. (See Inferior Courts.)
disposition of records, 701.
Supplies:
duties of Secretary of War in procurement of , 125
Sureties (see Bonds, and Disbursing Officers):
liability, 604, 605.
priority of, 247.
release, 604, 605.
security companies as, 594-601.
Surety Companies as Sureties, 594-601.
Surgeon-General's Office (see Medical Department):
clerical force, 134.
library, 940.
Suspension of Intercourse, 2029-2050.
Suspension of Officers, 1836.
Tables of Distances, 840.
Tableware:
purchases, 714.
Tactical Organizations, 529-534,570,571.
Tattooing Prohibited, 1833.
Teachers:
extra-duty pay, 742, 745.
Teamsters:
extra-duty pay, 742, 745.
Telegraph (see Telegraph Lines):
line to Capitol, 101, 102.
supervision of Chief Signal Officer, 1227, 1231.
Telegraph Lines (see Military Telegraph Lines):
control of, by Secretary of War, 127.
Temporary Appointments, 13-19.
Temporary Clerks:
salaries, 39.
Tender, Legal, in Debts Due the United States,
305, 306.
Term of Enlistment, 1370.
Territorial Homes, 2321-2324.
Territorial Militia, 1777-1781.
Territories:
issues of arms to, 1780, 1781.
Testing Machine at Watertown Arsenal, 1205-1208.
Text-books for Schools, 1714.
Thanksgiving Day, 46.
Timber (see Indian Reservations, Public Lands,
and Reservations):
floating of, in navigable waters, 1128, 1129.
Titles to Land:
examination, 334-335, 1593.
Tobacco:
amount furnished, 780.
cash sales, 780.
credit sales, 784.
rates, 780.
sales of, 780, 784.
Torpedoes:
injuries to, penalty, 1090.
Transfers :
engineer officers, 960.
enlisted men, 1376, 1377.
to staff, 589, 590.
Transportation (see Quartermaster's Department}:
allowance, 720, note.
animals, 720, note.
baggage, 720, note.
civilians, 720, note.
claims of States for reimbursement, 226, 229
contracts to be made for, 728.
control of Secretary of War, 125, 126.
deduction from mileage accounts, 723-725.
executive departments, 727.
horses, 720, note.
officers, 721-725.
persons, 720-725.
procurement of, 726.
property, 720, 721-727.
tables of distances, 724.
travel without troops, 721.
troops, 720, 721.
Travel Allowances (see Travel Allowances of Offi-
cers, and Travel Pay of Enlisted Men):
commissioned officers, 837-849.
militia, 1679, 1680.
Travel Allowances of Officers:
actual transportation, 843-845.
bond-aided roads, 844, 845.
INDEX.
1151
Travel Allowances of Officers— Continued,
distances, computation of, 840.
duty to be stated in order, 838.
expert accountant, 847.
mileage, 839, 840, 846, 848, 849.
necessity for travel to be stated, 837.
paid by paymasters, 848, 849.
paymaysters' clerks, 847.
rate, 839, 840.
route of travel, 837.
transportation in kind, 843-845.
travel without troops, 842.
Travel Expenses, 720, note,
engineer officers, 972.
volunteers, 541.
Travel Pay of Enlisted Men (see Travel Alloivances) :
allowance, 1391.
forfeiture, 1385.
sea travel, 1392.
Travel Pay on Discharge:
commissioned officers, 1336-1338.
enlisted men, 1391, 1392.
Travel without Troops, 721.
Treasurer (see Secretary of the Treasury, and
Treasury Department):
appointment, 283.
duties, 284.
public money subject to draft, 298.
reports of accounts outstanding, 304.
Treasury (see Treasurer, and Treasury Department):
balances unexpended, disposition of, 279-282.
militia fines, 1689, 1690.
receipts from military telegraph lines, 1232, 1233.
records of, in evidence, 1819.
tender, 305-308.
transcripts from books as evidence, 1820, 1821.
Treasury Department (see Accounting Officers, Ac-
counts, Secretary of the Treasury, and Treas-
urer):
appropriations, 271-275.
assistant treasurers, 286.
auditors, 194-214.
bookkeeping and warrants, division of, 210.
claims, 219-244.
Comptroller, 190-193.
debtors, discharge of, 248,249.
debts due by and to United States, 245-247.
depositories, 289, 290.
designated depositories, 289, 290.
disbursing agents, 291-295a.
estimates, 265-267.
fiscal agents, 295a.
fiscal year, 184.
legal tender, 305-308.
mints to be depositories, 287, 288.
national banks as depositories, 289.
outstanding checks, 309-311.
prosecution of claims, 235-244.
requisitions for funds, 61.
sales, proceeds of, 6H-616.
settlement of accounts, 632-635.
States, claims of, for war expenses, 223-230.
Treasurer, 2S3, 284.
Treasury of the United States, 285.
Treaties:
power to make, 7.
Troops (see Army, Enlisted Men, and Militia):
payments to, 800-^04.
transportation, 720, note.
Troops of the Line:
artillery corps, 1429-1444.
cavalry, 1419-1428.
colored regiments, 1420, 1446.
engineer troops, 1452.
infantry, 1445-1451.
maximum strength, 1453.
Trusses, 950-952.
Tucker Act (see Court of Claims), 403-417.
Uniform:
brevet rank, 1349.
highest regular rank, 1352, 1353.
highest volunteer rank, 1351.
President to prescribe, 749.
sale of, forbidden, 754.
selling, spoiling, etc., 755.
Union (see Flag), 2466,2467.
United States:
laws of, in evidence, 1827.
United States Military Telegraph Corps (see Mill
tary Telegraph Lines) :
certificates of service in, 1257.
Union Pacific Railroad, 2065.
Unlimited Retired List, 1300-1302.
Unused Appropriations, 28.
Vacancies:
chiefs of bureau, 14.
heads of Executive Departments, 13-19.
Veterinarians:
artillery, 1435, 1436.
cavalry, 1426.
Quartermaster's Department, 733.
Vice- Admiral:
relative rank, 564.
Vicksburg National Military Park, 2407-2414.
acquisition of lands, 2408.
commissioners, 2410, 2411.
construction of park, 2414.
designation, 2407.
engineer assistant to commissioners, 2408.
establishment, 2407.
extent, 2407.
injuries to monuments, trees, etc., 2413.
office, location of, 2410.
State monuments, 2412.
Volunteer Army (see War Establishment):
composition, 498.
Volunteers:
allowances, 527, 528.
appointments, 521.
apportionment, 517.
claims of States for raising, etc., 223-230.
colors, 542.
disbandment, 535-542.
discharge, 535, 552, 553.
enlistments, 524, 545, 546.
establishment in time of war, 498.
examining boards, 522.
extra pay on discharge, 536-639.
force of, 1899, 543-551.
general officers, 547.
general staff, 530-534.
increase of, 1899, 515, 516.
1152
INDEX.
Volunteers— Continued .
medical staff, 519.
muster out, 535-641, 552, 553.
nfuster rolls, 526.
organization, 617, 518, 643-546.
pay, 527, 528, 878a.
recruitment; 525.
reduction, 535-542.
returns, 526.
Signal Corps, 534.
staff officers, 547-551.
tactical organizations, 629-534.
term of service, 624.
travel pay, 541.
Wagons:
purchases, 729.
War:
extra-duty pay forbidden in time of, 746.
War Department (see Secretary of War):
absence, leaves of, 43-45.
absence of chief of bureau, 121.
Secretary of War, 119, 120.
administration of oaths, 49-51.
advertising, 79-81.
annual reports, 86-92.
appointment of clerks, 25-31.
Assistant Secretary of War, 118.
chief clerk, 21-23, 120, 134.
claims for losses in war with Spain, 137.
claims, prosecution of, 110-116.
classification of clerks, 32-37.
clerical force, 21-48, 134-136.
clerks, employees, etc., 21-48,134-136.
closing, for death of ex-officer, 98.
closing of buildings, 98.
clocks, use of recording, prohibited, 95.
contingent funds, 54-60.
contracts and purchases, 79-82.
deceased employees, transportation of remains,
96.
details in clerical force, 35, 136.
disbursing clerk, 24.
disposition of useless papers, 106, 107.
draping buildings in mourning, 97.
estimates, 62-78.
holidays, 46-48.
inspection of fuel, 83-85.
inventories of property, 93.
labor, hours of, 52, 63.
leaves of absence, 43-45.
legal advice, 338.
oaths, 49-51.
official register, 92a.
penalty envelopes, 100, 320-327.
postage stamps, official, 99.
purchases, 79-85.
recording clocks, 96.
regulations, 20.
renting of buildings, 93a, 94.
reports, 73-78, 86-92.
War Department— Continued.
salaries of clerks, 38-42, 134, 135.
Secretary of War, i!7, 122-128.
sick leaves, 43-45.
stationery, purchases of, 82.
telegraph line to Capitol, 101, 102.
War Department Building, 138, 139.
closing for death of an officer, 98.
custody, 138, 139.
draping in mourning, 97.
recording clocks prohibited, 95.
War Establishment, 509-511. (See Army, and Vol-
unteer Army.)
disbandment, 535-542.
Regular Army, 509-513.
Volunteer Army, 617-528.
War Service (see Retirement of Officers)".
computation of, for retirement, 1380.
Warrants, 209.
distress, 251-264.
Washington Aqueduct, 995-1010. (See Chief of
Engineers) :
contamination of water, 1009.
decisions of Chief Engineer, 1002.
diversion of water, 1005.
expenditure of appropriations, 1003.
pipes, use, injury to, 1007, 1008, 1010.
records, 999.
regulation of water supply, 1001.
reports, 1000.
supervision of Chief Engineer, 995, 9%.
water, use of, 1004.
Washington Monument (see Chief of Engineers):
care, etc., 990, 991.
society, 992.
Watchmen, Executive Departments:
salaries, 38.
Witnesses (see General Courts- Martial):
attachment, 1810.
fees, 1812-1814.
refusal of civilian to testify, 1811.
Women:
employment of, 34.
salaries, 38.
Wrecks (see Engineer Department, and Navigable
Waters of the United States) :
removal of, 1133.
Wrongful Conversion of Property, 1644.
Yellowstone National Park, 2423-2447.
control in Secretary of Interior, 2424.
employees, 2444.
employment of troops in, 2444, 2447.
establishment, 2423.
establishment and jurisdiction, 2423-2436.
improvements, 2440.
leases, 2442, 2443.
. protection of birds and animals, 2437-2441.
troops, detail of, for duty in, 2445, 2447.
United States commissioner, 2429-2435,
SUPPLEMENT TO THE FOURTH
EDITION OF THE
Military Laws of the United States
SHOWING CHANGES TO MARCH 4, 1907
With Appendices
Prepared under the direction of
The Honorable WILLIAM H. TAFT, Secretary of War
By Major JOHN BIDDLE PORTER, Judge-Advocate
United States Army
22924—08 73 1153
SUPPLEMENT
TO THE
MILITARY LAWS OF THE UNITED STATES.
The chapters and paragraphs of this Supplement have been num-
bered to conform as closely as possible to the chapters and paragraphs
of the Military Laws, containing the same general subject-matter.
New material has required three additional chapters in the Sup-
plement— the first one (Chapter XL VIII) containing the legislation
in regard to the General Staff Corps; the second (Chapter XLIX),
such legislation by the Philippine government and the tariff laws of
the United States as affect the Army, and the third (Chapter L), the
-recent acts of Congress relating to Alaska which affect the Army.
All paragraphs referred to, unless otherwise stated, are those of the
Military Laws of the United States (fourth edition) or of this Sup-
plement.
Appendices A, B and C contain, respectively, The Hague conven-
tions of 1899 relating to " Maritime warfare " and the " Laws and
customs of war on land," and the act of Congress incorporating " The
American National Red Cross " association.
1155
EERATA.
MILITARY LAWS OF THE UNITED STATES, 1901.
(Fourth edition.)
Page 35. Paragraph 87 is repealed by section 8 of the act of March
2, 1895 (28 Stats.. 808).
Page 111. In citation to paragraph 282, read June 20, " 1874,"
instead of " 1784."
Page 185. Insert under line 4 from top of page the words "A
Judge- Advocate-General's Department."
Page 194. Insert at end of paragraph 524, after " Sec. 4," " act of
April 22, 1898 (30 Stats., 361)," instead of "Mid;"
and at end of paragraph 525, after " Sec. 7," " act of
April 22, 1898, (30 Stats., 362)," instead of " ibid."
Page 195. Insert at end of paragraph 526, after "Sec. 8," "act
of April 22, 1898 (30 Stats., 362)," instead of "ibid;"
and at end of paragraph 527, after " Sec. 12," " act
of April 22, 1898 (30 Stats., 363)"; and at end of
paragraph 528, same page, read " 30 Stats., 420," in-
stead of "30 Stats., 424."
Page 232. In marginal note to paragraph 615, read Chapter
" 131," instead of Chapter " 130."
Page 233. In marginal note to paragraph 618, read v. " 30," p. 721,
instead of v. " 50," p. 721.
Page 240. In date of act cited at end to paragraph 631, read " 1885,"
instead of " 1895."
Page 253. Insert in lines 2 and 3 of paragraph 662, instead of the
words " during the active service of the present incum-
bent of the office, and with the rank of brigadier-
general thereafter," the words " and when a vacancy
shall occur in the office of Adjutant-General on the
expiration of service of the present incumbent, by
retirement or otherwise, the Adjutant-General shall
thereafter have the rank and pay of a brigadier-
general."
1157
1158 MILITARY LAWS OF THE UNITED STATES.
Page 255. In second citation to paragraph 671, read (30 Stat. L.,
" 978 "), instead of (30 Stat. L., " 977 ").
Page 319. At end of paragraph 822, instead of " act of February
24, 1881 (21 Stats. L., 346)," read "act of June 30,
1882 (22 Stats., 118) ;" and make like change in mar-
ginal note thereto.
Page 323. For the number to the paragraph following paragraph
830, which has been omitted, read " 831."
Page 325. In act cited at end of paragraph 839, read (" 31 " Stat.
L., 901), instead of ("30" Stat. L., 901),
Page 337. In marginal note to paragraph 8670, instead of " v. 19,
p. 50," read " v. 29, p. 60;" and in second line of note
2, instead of March " 3," 1901, read March " 2," 1901.
Page 339. In date of act cited at end of paragraph 871, read March
2, " 1899," instead of March 2, " 1889."
Page 391. In citation to statute at end of paragraph 1049, and in
the marginal note thereof, read March 1, " 1893,"
instead of "1892."
Page 416. In marginal note to paragraph 1112, read sec. 4, August
" 18," 1894, instead of sec. 4, August " 17," 1894.
Page 417. In date of act cited at end of paragraph 1113, read
August " 18," 1894, instead of August " 17," 1894.
Page 420. In date of act cited at end of paragraph 1116, read
August " 18," 1894, instead of August " 17," 1894, and
make corresponding change in marginal note thereto.
Page 505. In citations of statute to paragraph 1354, read (21 Stat.
L., "604"), instead of (21 Stat. L., "80"); and
make corresponding change in marginal note thereto.
See note on this statute , in Supplement to the Revised
Statutes, volume 2, page HO.
Page 538. In paragraph 1440, second line, read " two " first lieu-
tenants, instead of " one " first lieutenant.
Page 543. In subdivision to chapter 31 read " 1468. The com-
mandant of cadets," instead of " 1468. The same,
pay and allowances ;" and to the number following, on
same page, read " 1469. Superintendent and com-
mandant, pay of," instead of " 1469. The comman-
dant of cadets."
Page 642. In tenth line from top of foot-note, instead of February
28, " 1895," read February 28, " 1795."
Page 648. In date of act cited at end of paragraph 1693, read
" 1887 " instead of " 1901," and 24 Stats., " 402 " in-
stead of " 401," and make corresponding changes in
marginal note thereto.
ERRATA. 1159
Page 825. For paragraph 2103, substitute paragraph 2103a.
Page 898. In date of act cited at end of paragraph 2294, read
" 1886 " instead of " 1896."
Page 917. In subdivision to chapter 44 read—
" 2366, 2367, 2368, 2369. Purchases.
2370. State monuments.
2371. Erection of monuments, restriction.
2372. The same, construction.
2373. The same, location.
2374. Leases.
2375. Donation of land for roads.
2376. Donations of cannon, balls, etc.
2377. Injuries to monuments, trees, etc.
2378. Right of way to Chattanooga Rapid Transit
Railroad."
Page 928. In last line of paragraph 2383 read " eighteen hundred
and ninety-four," instead of "eight hundred and
ninety- four."
Page 954. In marginal note to paragraph 2448 read : July " 24," in-
stead of July " 14."
Page 1130. After "Extradition: enforcement of, read "2090-2093,"
instead of " 2080-2083."
Page 1135. After "Military Storekeepers:" subsubject "ordnance"
read " 807," instead of " 1169-1171."
Page 1136. After " Militia" subsubject " property returns" read
" 1695," instead of " 1690."
CHAPTER I.
THE EXECUTIVE.
lla. Employees of the Executive Departments and other establish-
ments of the executive branch of the Government may be detailed
from time to time to the office of the President of the United States,
for such temporary assistance as may be necessary. Act of February
26,1907 (34 Stats., 401).
CHAPTER II.
PROVISIONS APPLICABLE TO THE SEVERAL EXECUTIVE DEPARTMENTS.
APPOINTMENT OF CLERKS; RESTRICTIONS ON APPOINTMENT.
28a. Hereafter it shall be unlawful to detail civil officers, clerks,
or other subordinate employees who are authorized or employed
under or paid from appropriations made for the military or naval
establishments, or any other branch of the public service outside of
the District of Columbia, except those officers and employees whose
details are now especially provided by law, for duty in any bureau,
office, or other division of any Executive Department in the District
of Columbia, except temporary details for duty connected with their
respective offices. Sec. 6, Act of June 82, 1906 (34 Stats., 449) .
(This paragraph amplifies paragraph 28.)
28b. It shall not be lawful hereafter for any clerk or other em-
ployee in the classified service in any of the Executive Departments
to be transferred from one Department to another Department until
such clerk or other employee shall have served for a term of three
years in the Department from which he desires to be transferred.
Sec. 5, Act of June 22, 1906 (34 Stats., 449).
31a. The appropriations herein made for the officers, clerks, and
persons employed in the public service shall not be available for the
compensation of any persons incapacitated otherwise than tempo-
rarily for performing such service, and the heads of Departments
shall cause this provision to be enforced. Sec. 3, Act of February
26, 1907 (34 Stats., 993).
(This paragraph takes the place of paragraph 31.)
1161
1162 MILITARY LAWS OF THE UNITED STATES.
CONTINGENT FUNDS.
56a. Section one hundred and ninety-two, Revised Statutes,1 shall
not apply to the subscriptions to newspapers by the military informa-
tion division for the fiscal years ending June thirtieth, nineteen hun-
dred, June thirtieth, nineteen hundred and one, June thirtieth, nine-
teen hundred and two, June thirtieth, nineteen hundred and three,
and thereafter. Act of March 2, 1903 (32 Stats., 929).
(This modifies paragraph 56.)
56b. So much of section one hundred and ninety-two of the Re-
vised Statutes of the United States as requires newspapers purchased
for the use of the Executive Departments to be preserved for the per-
manent files of such Departments be, and the same is hereby, repealed.
Sec. 7, Act of June 22, 1906 (34 Stats., 44$).
(This paragraph amends paragraph 56.)
58a. For contingent expenses of the military information division,
General Staff Corps, including the purchase of law books, professional
books of reference, professional and technical periodicals and news-
papers, and of the military attaches at the United States embassies
and legations abroad, and of the branch office of the Military Informa-
tion Division at Manila, to be expended under the direction of the Sec-
retary of War, ten thousand dollars : Provided, That section thirty-
six hundred and forty-eight, Revised Statutes,2 shall not apply to sub-
scriptions for foreign and professional newspapers and periodicals
to be paid for from this appropriation. Act of April 23, 1904 (33
Stats., 260).
(This provision now appears annually in the appropriation act for the support
of the Army. It has the effect of modifying paragraph 617.)
ESTIMATES.
64a. Hereafter the estimates for expenses of the Government, ex-
cept those for sundry civil expenses, shall be prepared and submitted
1 SEC. 192, R. S. The amount expended in any one year for newspapers, for
any Department, except the Department of State, including all the Bureaus
and offices connected therewith, shall not exceed one hundred dollars. And all
newspapers purchased with the public money for the use of either of the De-
partments must be reserved as files for such Department.
2 SEC. 3648, R. S. No advance of public money shall be made in any case what-
ever. And in all cases of contracts for the performance of any service, or the
delivery of articles of any description, for the use of the United States, payment
shall not exceed the value of the service rendered, or of the articles delivered
previously to such payment. It shall, however, be lawful, under the special
direction of the President, to make such advances to the disbursing officers of the
Government as may be necessary to the faithful and prompt discharge of their
respective duties, and to the fulfillment of the public engagements. The Presi-
dent may also direct such advances as he may deem necessary and proper, to
persons in the military and naval service employed on distant stations, where
the discharge of the pay and emoluments to which they may be entitled cannot
be regularly effected.
SUPPLEMENT. 1163
each year according to the order and arrangement of the appropria-
tion Acts for the year preceding. And any changes in such order
and arrangement, and transfers of salaries from one office or bureau
to another office or bureau, or the consolidation of offices or bureaus
desired by the head of any Executive Department may be submitted
by note in the estimates. *
Hereafter the heads of the several Executive Departments and all
other officers authorized or required to make estimates for the public
service shall include in their annual estimates furnished the Secretary
of the Treasury for inclusion in the Book of Estimates all estimates
of appropriations required for the service of the fiscal year for which
they are prepared and submitted, and special or additional estimates
for that fiscal year shall only be submitted to carry out laws subse-
quently enacted, or when deemed imperatively necessary for the pub-
lic service by the Department in which they shall originate, in which
case such special or additional estimate shall be accompanied by a
(full statement of its imperative necessity and reasons for its omission
'in the annual est iinates. Sec. 4, Act of June 22, 1906 (34 Stats., 448) .
68a. The Public Printer is authorized hereafter to procure and
supply, on the requisition of the head of any Executive Department
or other Government establishment, complete manifold blanks, books,
and forms, required in duplicating processes; also complete patented
devices with which to file money-order statements, or other uniform
official papers, and to charge such supplies to the allotment for print-
ing and binding of the Department or Government establishment
requiring the same. Act of June 28, 1902 (32 Stats., 481).
68b. Hereafter no book or document not having to do with the ordi-
nary business transactions of the Executive Departments shall be
printed on the requisition of any Executive Department or unless the
same shall have been expressly authorized by Congress, Act of
March J, 1905 (33 Stats., 1249).
68c. Hereafter, in the printing and binding of documents or reports
emanating from the Executive Departments, bureaus, and independ-
ent offices of the Government, the cost of which is now charged to
the allotment for printing and binding for Congress, or to appropria-
tions or allotments of appropriations other than those made to the
Executive Departments, bureaus, or independent offices of the Gov-
ernment, the cost of illustrations, composition, stereotyping, and
other work involved in the actual preparation for printing, apart
from the creation of manuscript, shall be charged to the appropria-
tion or allotment of appropriation for the printing and binding of
the Department, bureau, or independent office of the Government in
which such documents or reports originate ; the balance of cost shall
be charged to the allotment for printing and binding for Congress,
and to the appropriation or allotment of appropriation of the Execu-
1164 MILITARY LAWS OF THE UNITED STATES.
tive Department, bureau, or independent office of the Government,
in proportion to the number delivered to each ; the cost of any copies
of such documents or reports distributed otherwise than through
Congress, or the Executive Departments, bureaus, and independent
offices of the Government, if such there be, shall be charged as hereto-
fore : Provided, That on or before the first day of December in each
fiscal year each Executive Department, bureau, or independent office
of the Government to which an appropriation or allotment of appro-
priation for printing and binding is made, shall obtain from the
Public Printer an estimate of the probable cost of all publications of
such Department, bureau, or independent office now required by law
to be printed, and so much thereof as would, under the terms of this
resolution, be charged to the appropriation or allotment of appro-
priation of the Department, bureau, or independent office of the Gov-
ernment in which such publications originate, shall thereupon be set
aside to be applied only to the printing and binding of such docu-
ments and reports, and shall not be available for any other purpose
until all of such allotment of cost on account of such documents and
reports shall have been fully paid. Joint Res. of March 30, 1906 (3 '4
Stats., 825).
68d. Tho, number of copies of any public document or report now
authorized to be printed or which may hereafter be authorized to
be printed for any of the Executive Departments, or bureaus or
branches thereof, or independent offices of the Government may be
supplied in two or more editions, instead of one, upon a requisition
on the Public Printer by the official head of such Department or
independent office, but in no case shall the aggregate of said editions
exceed the number of copies now authorized, or which may hereafter
be authorized. Joint Res. of March 30, 1906 (34 Stats., 826).
68e. Hereafter there shall be submitted in the regular annual esti-
mates to Congress under and as a part of the expenses for " Print-
ing and binding," estimates for all printing and binding required by
each of the Executive Departments, their bureaus and offices, and
other Government establishments at Washington, District of Colum-
bia, for each fiscal year; and after the fiscal year nineteen hundred
and seven no appropriations other than those made specifically and
solely for printing and binding shall be used for such purposes in any
Executive Department or other Government establishment in the
District of Columbia: Provided, That nothing in this section shall
apply to stamped envelopes, or envelopes and articles of stationery
other than letter heads and note heads, printed in the course of manu-
facture. Sec. 2, Act of June 30, 1906 (34 Stats., 762).
68f . Hereafter no part of the appropriations made for printing and
binding shall be used for any illustration, engraving, or photograph
in any document or report ordered printed by Congress unless the
SUPPLEMENT. 1165
order to print expressly authorizes the same, nor in any document
or report of any executive department or other Government estab-
lishment until the head of the executive department or Government
establishment shall certify in a letter transmitting such report that
the illustration is necessary and relates entirely to the transaction
of public business. Sec. 1, Act of March 3, 1905 (33 Stats., IMS).
75a, Hereafter the Secretary of the Treasury shall require, and it
shall be the duty of the head of each Executive Department or other
Government establishment to furnish him, within thirty days after
the close of each fiscal year, a statement of all money arising from
proceeds of public property of any kind or from any source other
than the postal service, received by said head of Department or other
Government establishment during the previous fiscal year for or on
account of the public service, or in any other manner in the discharge
of his official duties other than as salary or compensation, which was
not paid into the General Treasury of the United States, together
with a detailed account of all payments, if any, made from such
funds during such year. All such statements, together with a similar
statement applying to the Treasury Department, shall be transmitted
by the Secretary of the Treasury to Congress at the beginning of each
regular session. Sec. 5, Act of June SO, 1906 (34 Stats., 70S).
MISCELLANEOUS REQUIREMENTS.
lOOa. No part of any money appropriated by this Act shall be used
for purchase, maintaining, driving, or operating any carriage or other
vehicle, other than those authorized for personal purposes in section
two of the legislative, executive, and judicial appropriation Act for
the fiscal year nineteen hundred and five, unless the same shall have
conspicuously painted thereon at all times the full name of the Ex-
ecutive Department or other branch of the public service to which
the same belong and in the service of which the same are used. Sec.
3, Act of April 28, 1904 (33 Stats., 513) .
lOOb. No part of any money appropriated by this or any other Act
shall be used for purchasing, maintaining, driving, or operating any
carriage or vehicle (other than those for the use of the President of
the United States, the heads of the Executive Departments, and the
Secretary to the President, and other than those used for transporta-
tion of property belonging to or in the custody of the United States) ,
for the personal or official use of any officer or employee of any of
the Executive Departments or other Government establishments at
Washington, District of Columbia, unless the same shall be specific-
ally authorized by law or provided for in terms by appropriation of
money, and all such carriages and vehicles so procured and used for
official purposes shall have conspicuously painted thereon at all times
1166 MILITARY LAWS OF THE UNITED STATES.
the full name of the Executive Department or other branch of the
public service to which the same belong and in the service of which
the same are used. Sec. 4, Act of February 3, 1905 (33 Stats., 687).
(This paragraph takes the place of paragraph lOOa.)
CHAPTER III.
THE DEPARTMENT OF WAR.
DUTIES OF THE SECRETARY OF WAR.
126a. No steamship in the transport service of the United States
shall be sold or disposed of without the consent of Congress having
been first had or obtained. Act of March 2, 1903 (32 Stats., 938) .
126b. No action looking to the discontinuance of the transport serv-
ice shall be taken without further action of Congress. Act of March
2,1903 (32 Stats., 939).
126c. On and after July first, nineteen hundred and six, no mer-
chandise except supplies for the Army or Navy shall be transported
by sea, under penalty of forfeiture thereof, between ports of the
United States and ports or places in the Philippine Archipelago,
directly or via a foreign port, or for any part of the voyage, in any
other vessel than a vessel of the United States. But this section shall
not be construed to prohibit the sailing of any foreign vessel between
any port of the United States and any port or place in the Philippine
Archipelago: Provided, That no merchandise other than that im-
ported in such vessel from some foreign port which has been specified
on the manifest as for another port, and which shall not have been un-
loaded, shall be carried between a port of the United States and a port
or place in the Philippine Archipelago. Sec: 1, Act of April 15, 1904
(33 Stats., 181).
126d. Vessels of the United States, or belonging to the United
States, and no others, shall be employed in the transportation by sea
of coal, provisions, fodder, or supplies of any description, purchased
pursuant to law, for the use of the Army or Navy unless the Presi-
dent shall find that the rates of freight charges by said vessels are
excessive and unreasonable, in which case, contracts shall be made
under the law as it now exists : Provided, That no greater charges be
made by such vessels for transportation of articles for the use of the
said Army and Navy than are made by such vessels for transportation
of like goods for private parties or companies. Act of April 28, 1904
(33 Stats., 518) .
126e. On and after April eleventh, nineteen hundred and nine, no
merchandise except supplies for the Army or Navy shall be trans-
ported by sea, under penalty of forfeiture thereof, between ports of
SUPPLEMENT. 1167
the United States and ports or places in the Philippine Archipelago,
directly or via a foreign port, or for any part of the voyage, in any
other vessel than a vessel of the United States. But this section shall
not be construed to prohibit the sailing of any foreign vessel between
any port of the United States and any port or place in the Philippine
Archipelago: Provided, That no merchandise other than that im-
ported in such vessel from some foreign port which has been specified
on the manifest as for another port, and which shall have not been
unloaded, shall be carried between a port of the United States and a
port or place in the Philippine Archipelago. Sec. 1, Act of April
30,1906 (34 Stats., 154).
(This paragraph takes the place of paragraph 126c.)
126f. On and after April eleventh, nineteen hundred and nine, no
foreign vessel shall transport passengers between ports of the United
States and ports or places in the Philippine Archipelago, either
directly or by way of a foreign port, under a penalty of two hundred
dollars for each passenger so transported and landed. Sec. 2, Act of
April 30, 1906 (34 Stats., 1-54).
126g. Sections one and two of this Act shall not apply to the trans-
portation of merchandise or passengers between ports or places in
the Philippine Archipelago. Until Congress shall have authorized
the registry as vessels of the United States of vessels owned in the
Philippine Archipelago the government of the Philippine Islands is
hereby authorized to adopt, from time to time, and enforce regula-
tions governing the transportation of merchandise and passengers
between ports or places in the Philippine Archipelago. Sec. 3, Act of
April 30, 1906 (34 Stats., 154).
126h. Sections one and two of this Act shall not apply to the voy-
age of a vessel between a port of the United States and a port or
place in the Philippine Archipelago begun before April eleventh,
nineteen hundred and nine. Sec. 4, Act of April 30, 1906 (34 Stats.,
154).
1261. Sections one and two of this Act shall not apply to vessels
owned by the United States. Sec. 5, Act of April 30, 1906 (34 Stats.,
154).
126j. On and after the passage of this Act the same tonnage taxes
shall be levied, collected, and paid upon all foreign vessels coming
into the United States from the Philippine Archipelago which are
required by law to be levied, collected, and paid upon vessels coming
into the United States from foreign countries: Provided, however,
That until April eleventh, nineteen hundred and nine, the provisions
of law restricting to vessels of the United States the transportation
of passengers and merchandise directly or indirectly from one port of
the United States to another port of the United States shall not be
1168 MILITAKY LAWS OF THE UNITED STATES.
applicable to foreign vessels engaging in trade between the Philippine
Archipelago and the United States : And provided further, That the
Philippine Commission shall be authorized and empowered to issue
licenses to engage in lighterage or other exclusively harbor business
to vessels or other craft actually engaged in such business at the date
of the passage of this Act, and to vessels or other craft built in the
Philippine Islands or in the United States and owned by citizens of
the United States or by inhabitants of the Philippine Islands. Sec. 6,
Act of April 30, 1906 (34 Stats., 154).
126k. The Secretary of Commerce and Labor shall, from time to
time, issue regulations for the enforcement of this Act, except as other-
wise provided in section three : Provided, That such of the naviga-
tion laws of the United States as are in force in the Philippine Archi-
pelago in regard to vessels arriving in the Philippine Islands from
the mainland territory and other insular possessions of the United
States shall continue to be administered by the proper officials of the
government of the Philippine Islands. Sec. 7, Act of April 30, 1906
(34 Stats., 155).
CONGRESS OF NATIONS.
141a. The sum of three thousand dollars a year is hereby appropri-
ated, out of any money in the Treasury not otherwise appropriated,
for the support and maintenance of the permanent international com-
mission of the congresses of navigation and for the payment of the
actual expenses of the properly accredited national delegates of the
United States to the meetings of the congresses and of the commis-
sion ; and that the Secretary of War be, and is hereby, authorized to
draw his warrant each year upon the Secretary of the Treasury for
such sum, not to exceed three thousand dollars, as may in his opinion
be proper to apply to the purposes above mentioned, and that the said
sum shall be disbursed under such regulations as may be prescribed
by the Secretary of War.
The national delegates aforesaid from the United States shall serve
without compensation, but shall be reimbursed for their actual
expenses incurred while traveling to and from the meetings, and
while in attendance thereon, from the funds herein appropriated and
authorized to be expended. Act of June 28, 1902 (32 Stats., 485).
BUREAU OF INSULAR AFFAIRS.
141b. The Division of Insular Affairs of the War Department, or-
ganized by the Secretary of War, is hereby continued until otherwise
provided, and shall hereafter be known as the Bureau of Insular
Affairs of the War Department. The business assigned to said Bu-
reau shall embrace all matters pertaining to civil government in
SUPPLEMENT. 1169
the island possessions of the United States subject to the jurisdiction
of the War Department ; and the Secretary of War is hereby author-
ized to detail an officer of the Army whom he may consider especially
well qualified, to act under the authority of the Secretary of War as
the chief of said Bureau; and said officer while acting under said
detail shall have the rank, pay, and allowances of a colonel. Sec. 87,
Act of July 1, 1902 (32 Stats., 712).
141 c. The Chief of the Bureau of Insular Affairs of the War De-
partment shall hereafter be appointed by the President for the period
of four years, unless sooner relieved, with the advice and consent of
the Senate, and while holding that office he shall have the rank, pay,
and allowances of a brigadier-general. Act of June 25, 1906 (34
Stats., 456).
(This paragraph amends paragraph 141b.)
141d. The Secretary of War is hereby authorized to detail an officer
of the Army, whom he may consider especially well qualified, to act
as principal assistant to the Chief of the Bureau of Insular Affairs
of the War Department, and said principal assistant while acting
under said detail shall have the rank, pay, and allowances of a major.
Act of March 2, 1907 (34 Stats., 1162).
141e. The provisions of section twenty-seven of the Act of Feb-
ruary second, nineteen hundred and one, with reference to the trans-
fer of officers of the line to the departments of the staff for tours of,
service, shall apply to the vacancy created by this Act and to the
return of the officer so detailed to the line of the Army. Act of
March 2, 1907 (34 Stats., 1162).
(See paragraph 582.)
APPROPRIATIONS.
272a. No Executive Department or other Government establish-
ment of the United States shall expend, in any one fiscal year, any sum
in excess of appropriations made by Congress for that fiscal year, or
involve the Government in any contract or other obligation for the
future payment of money in excess of such appropriations unless
such contract or obligation is authorized by law. Nor shall any De-
partment or any officer of the Government accept voluntary service for
the Government or employ personal service in excess of that author-
ized by law, except in cases of sudden emergency involving the loss
of human life or the destruction of property. All appropriations
made for contingent expenses or other general purposes, except
appropriations made in fulfillment of contract obligations expressly
authorized by law, or for objects required or authorized by law with-
out reference to the amounts annually appropriated therefor, shall, on
22924—08 74
1170 MILITARY LAWS OF THE UNITED STATES.
or before the beginning of each fiscal year, be so apportioned by
monthly or other allotments as to prevent expenditures in one portion
of the year which may necessitate deficiency or additional appropria-
tions to complete the service of the fiscal year for which said appro-
priations are made ; and all such apportionments shall be adhered to
and shall not be waived or modified except upon the happening of
some extraordinary emergency or unusual circumstance which could
not be anticipated at the time of making such apportionment, but this
provision shall not apply to the contingent appropriations of the
Senate or House of Representatives ; and in case said apportionments
are waived or modified as herein provided, the same shall be waived
or modified in writing by the head of such Executive Department or
other Government establishment having control of the expenditure,
and the reasons therefor shall be fully set forth in each particular
case and communicated to Congress in connection with estimates for
any additional appropriations required on account thereof. Any per-
son violating any provision of this section shall be summarily re-
moved from office and may also be punished by a fine of not less than
one hundred dollars or by imprisonment for not less than one month.
Act of February 27, 1906 (34 Stats., 48).
(This paragraph amends Section 3679 of the Revised Statutes, as amended by
section 4 of the deficiency appropriation act of March 3, 1905, 33 Stats., 1257.)
272b. No Act of Congress hereafter passed shall be construed to
make an appropriation out of the Treasury of the United States, or to
authorize the execution of a contract involving the payment of money
in excess of appropriations made by law,' unless such Act shall in
specific terms declare an appropriation to be made or that a contract
may be executed. Sec. 9, Act of June 30, 1906 (34 Stats., 764).
(See paragraphs 272a, 659, and 1623.)
APPLICATION OF BALANCES.
279a. Hereafter the appropriations " Ordnance-stores ammuni-
tion," " Small-arms target practice," and " Ordnance stores and sup-
plies " shall be available for two years to procure the stores authorized
by them. Act of March 2, 1907 (34 Stats., 1175).
(See paragraph 282.)
CHAPTER V.
THE DEPARTMENT OF THE TREASURY — THE ACCOUNTING OFFICERS.
DESIGNATED DEPOSITORIES.
290a. The treasury of the Philippine Islands and such banking
associations in said islands with a paid up capital of not less than two
million dollars and chartered by the United States or any State
SUPPLEMENT. 1171
thereof as may be designated by the Secretary of War and the Secre-
tary of the Treasury of the United States shall be depositories of
public money of the United States, subject to the provisions of exist-
ing law governing such depositories in the United States : Provided,
That the treasury of the government of said islands shall not be
required to deposit bonds in the Treasury of the United States, or
to give other specific securities for the safe-keeping of public money
except as prescribed, in his discretion, by the Secretary of War.
Sec. 85, Act of July 1, 1902 (32 Stats., 711).
CHAPTER VII.
THE DEPARTMENT OF JUSTICE — HABEAS CORPUS — THE COURT OF
CLAIMS.
HABEAS. CORPUS.
36 la. The privilege of the writ of habeas corpus shall not be sus-
pended, unless when in cases of rebellion, insurrection, or invasion
the public safety may require it, in either of which events the same
may be suspended by the President, or by the governor, with the
approval of the Philippine Commission, wherever during such period
the necessity for such suspension shall exist. Sec. 5, Act of July 1,
1920 (32 Stats., 692).
(This paragraph applies to the Philippine Islands, being a part of the "Act
temporarily to provide for the administration of the affairs of civil government
in the Philippine Islands, and for other purposes.")
CHAPTER XI.
THE MILITARY ESTABLISHMENT — GENERAL PROVISIONS OF
ORGANIZATION.
NATIVE TROOPS TROOPS IN THE PHILIPPINE ISLANDS.
501a. Any companies of Philippine scouts ordered to assist the
Philippine constabulary in the maintenance of order in the Philippine
Islands may be placed under the command of officers serving as chief
or assistant chiefs of the Philippine constabulary, as herein provided :
Provided, That when the Philippine scouts shall be ordered to assist
the Philippine constabulary, said scouts shall not at any time be
placed under the command of inspectors or other officers of the con-
stabulary below the grade of assistant chief of constabulary. Sec. 2,
Act of January 30, 1903 (32 Stats., 783).
1172 MILITARY LAWS OF THE UNITED STATES.
THE PORTO RICAN REGIMENT.
505a. Citizens of Porto Rico shall be eligible for enlistment in the
Regular Army and the Porto Rico Regiment may be ordered for serv-
ice outside of the island of Porto Rico. Act of March 2, 1903 (32
Stats., 934).
(This amplifies paragraphs 671 and 1366 in regard to enlistments.)
505b. For Porto Rico Provisional Regiment of Infantry, composed
of two battalions of four companies each, to include the enlisted men
of the present regiment who may be in the service June thirtieth,
nineteen hundred and four, and officers as herein provided. The
field officers shall be detailed from the officers of the Regular Army
of the same grade and shall receive the pay and emoluments of their
grade. The present officers of the regiment below the grade of field
officers who are mentally, morally, and physically qualified and have
proved efficient in their respective -positions may be reappointed by
the President, by and with the advice and consent of the Senate (and
such officers shall be entitled to preference in such appointments) for
a provisional term of four years. Officers so reappointed shall be
eligible for promotion in the regiment up to and including the rank
of captain, upon examination as to their fitness for such promotion.
Vacancies then existing or thereafter occurring in the grade of sec-
ond lieutenant may be filled by the President, in his discretion, by
and with the advice and consent of the Senate, by the appointment of
citizens of Porto Rico for the provisional term of four years, whose
qualifications for commissions shall be established by such examina-
tion as the President may prescribe, who shall also be eligible for pro-
motion in the regiment up to and including the rank of captain, upon
an examination as to their fitness. Vacancies not filled as hereinbe-
fore provided by the reappointment or promotion of the present offi-
cers or by the appointment or promotion of citizens of Porto Rico,
shall be filled by detail from the line of the infantry of the Army of
the same grade with the vacancy to be filled. Men hereafter enlisted
in the regiment shall be citizens of Porto Rico and shall be enlisted
for a term of two years; and except in the case of noncommissioned
officers shall not be reenlisted in time of peace. The names of all en-
listed men who have served honorably in the regiment shall be kept at
the headquarters of the regiment, and these men shall be regarded as
a reserve, to be specially considered in time of war. The pay and al-
lowances of officers and enlisted men of the regiment shall be the
same as authorized for like grades in the Regular Army. Act of
April 23, 1904 (33 Stats., 266}.
(This paragraph alters the provision of paragraph 505.)
SUPPLEMENT. 1173
THE VOLUNTEER ARMY.
518a. All the volunteer forces of the United States called for by
authority of Congress shall, except as hereinbefore provided, be or-
ganized in the manner provided by the Act entitled "An Act to pro-
vide for temporarily increasing the military establishment of the
United States in time of war, and for other purposes," approved
April twenty-second, eighteen hundred and ninety-eight. Sec. 24>
Act of January 21, 1903 (32 Stats., 780).
(This paragraph has reference to the "Act to promote the efficiency of the
militia, and for other purposes." The provisions of this Act are incorporated,
in this supplement, in the chapter entitled "Militia," excepting section 23 of
the Act which belongs more properly to the "Volunteer Army" and which will
be found in this supplement as paragraph 522a.)
522a. For the purpose of securing a list of persons specially quali-
fied to hold commissions in any volunteer force which may hereafter
be called for and organized under the authority of Congress, other
than a force composed of organized militia, the Secretary of War is
authorized from time to time to convene boards of officers at suitable
and convenient army posts in different parts of the United States,
who shall examine as to their qualifications for the command of
troops or for the performance of staff duties all applicants who shall
have served in the Regular Army of the United States, in any of the
volunteer forces of the United States, or in the organized militia of
any State or Territory or District of Columbia, or who, being a citizen
of the United States, shall have attended or pursued a regular course
of instruction in any military school or college of the United States
Army, or shall have graduated from any educational institution to
which an officer of the Army or Navy has been detailed as superin-
tendent or professor pursuant to law after having creditably pursued
the course of military instruction therein provided. Such examina-
tions shall be under rules and regulations prescribed by the Secretary
of War, and shall be especially directed to ascertain the practical
capacity of the applicant. The record of previous service of the
applicant shall be considered as a part of the examination. Upon the
conclusion of each examination the board shall certify to the War
Department its judgment as to the fitness of the applicant, stating the
office, if any, which it deems him qualified to fill, and, upon approval
by the President, the names of the persons certified to be qualified
shall be inscribed in a register to be kept in the War Department for
that purpose. The persons so certified and registered shall, subject
to a physical examination at the time, constitute an eligible class for
commissions pursuant to such certificates in any volunteer force here-
after called for and organized under the authority of Congress, other
thai! a force composed of organized militia, and the President may
1174 MILITARY LAWS OF THE UNITED STATES.
authorize persons from this class, to attend and pursue a regular
course of study at any military school or college of the United States
other than the Military Academy at West Point and to receive from
the annual appropriation for the support of the Army the same allow-
ances and commutations as provided in this Act for officers of the
organized militia: Provided ', That no person shall be entitled to
receive a commission as a second lieutenant after he shall have passed
the age of thirty; as first lieutenant after he shall have passed the
age of thirty-five; as captain after he shall have passed the age of
forty; as major after he shall have passed the age of forty-five; as
lieutenant-colonel after he shall have passed the age of fifty, or as
colonel after he shall have passed the age of fifty-five: And provided
further, That such appointments shall be distributed proportionately
as near as may be, among the various States contributing such volun-
teer force : And provided, That the appointments in this section pro-
vided for shall not be deemed to include appointments to any office in
any company, troop, battery, battalion, or regiment of the organized
militia which volunteers as a body or the officers of which are ap-
pointed by the governor of a State or Territory. Sec. 23, Act of
January 21, 1903 (32 Stats., 779).
CHAPTER XII.
GENERAL OFFICERS, AIDS, AND MILITARY SECRETARIES.
555a. When the office of Lieu tenant- General shall become vacant it
shall not thereafter be filed, but said office shall cease and determine :
Provided further, That nothing in this provision shall affect the re-
tired list. Act of March 2, 1907 (34 Stats., 1160).
(This paragraph amends paragraph 555. See paragraph 558.)
CHAPTER XIII.
RANK AND COMMAND — TACTICAL AND TERRITORIAL ORGANIZATIONS.
CLERKS AND MESSENGERS.
572a. Pay to clerks and messengers at headquarters of division and
departments and office of the Chief of Staff.
One chief clerk, at the office of the Chief of Staff, two thousand
dollars per annum.
Four clerks, at one thousand eight hundred dollars each per annum.
Ten clerks, at one thousand six hundred dollars each per annum.
Twenty-five clerks, at one thousand four hundred dollars each per
annum.
SUPPLEMENT. 1175
Sixty-five clerks, at one thousand two hundred dollars each per
annum.
Eighty-six clerks, at one thousand dollars each per annum.
Sixty-eight general-service messengers, at seven hundred and
twenty dollars each per annum.
In all, two hundred and seventy-three thousand one hundred and
sixty dollars. Act of April 23, 1904 (3$ State., 261).
(This paragraph amends paragraph 572 by providing for the clerks needed
under the new organization for the General Staff and for military divisions.)
573a. It shall not hereafter be lawful to detail clerks or other ci-
vilian employees authorized for the Office of the General Staff for
duty, temporary or otherwise, in any office or bureau of the War De-
partment at Washington, District of Columbia, or to detail clerks or
other employees from the War Department for service in the Office
of the General Staff. Act of June 22, 1906 (34 Stats., 418) .
573b. No clerk, messenger, or laborer at headquarters of divisions,
departments, or office of the Chief of Staff, shall be assigned to duty
with any bureau in the War Department. Act of March 2, 1907 (34
Stats., 1161).
CHAPTER XIV.
THE STAFF DEPARTMENTS — GENERAL PROVISIONS — DISBURSING
OFFICERS.
APPOINTMENTS AND DETAILS.
577a. No officer hereafter detailed or appointed under the pro-
visions of section twenty-six of the Act of February second, nineteen
hundred and one, who has less than four years to serve from the date
of his detail or appointment to the date of his retirement shall serve
under such detail or appointment or be paid as if on the active list
beyond the date of his retirement. Act of June 30, 1902 (32 Stats.,
509).
SETTLEMENT OF ACCOUNTS ARISING DURING THE SPANISH-AMERICAN
WAR.
605a. The proper accounting officers of the Treasury are hereby,
directed, in the settlement of the accounts of disbursing officers of the
War Department, arising between the twenty-first day of April,
eighteen hundred and ninety-eight, from which date war with Spain
is declared to have existed, and the eighth day of July, nineteen hun-
dred and one, inclusive, the date on which the last organization of the
1176 MILITARY LAWS OF THE UNITED STATES.
Volunteer Army was mustered out of the service of the United States,
to allow such credits for payments and for losses of funds, vouchers,
and property as may be recommended under authority of the Secre-
tary, of War by the heads of the military bureaus to which such ac-
counts respectively pertain. Sec. 1, Act of March 3, 1903 (32 Stats.,
955).
605b. The accounts of military officers, whether of the line or staff,
for Government property charged to them, shall be closed by the
proper accounting officers whenever, in the judgment of the Secretary
of War, it will be for the interest of the United States to do so:
Provided, That such accounts originated subsequent to April twenty-
first, eighteen hundred and ninety-eight, and prior to the ninth day of
July, nineteen hundred and one : Provided further, That no settle-
ment shall be made by the officers of the Treasury, under this act, of
the accounts of any officer whose combined responsibility for public
money and Government property shall exceed the sum of five thou-
sand dollars, and only of such officers of the Army in whose accounts
there is no apparent fraud against the United States : And provided
'further, That this act shall remain in force for two years from ano!
after its passage, and no longer. Sec. 2, Act of March 3, 1903 (32
Stats., 956).
DEPOSIT AND SAFE-KEEPING OF THE PUBLIC MONEY.
607a. All funds received as the value of military stores transferred
by the several staff departments of the Army to the Insular Depart-
ment of the Philippines shall be deposited in the Treasury of the
United States and remain available during the fiscal year nineteen
hundred and five for the procurement of like military stores to replace
those so transferred. Act of April 23, 1904 (33 Stats., 275).
LOST CHECKS DUPLICATE CHECKS.
631a. Whenever any original disbursing officer's check is lost,
stolen, or destroyed, the Secretary of the Treasury may authorize the
officer issuing the same, after the expiration of six months and within
three years from the date of such disbursing officer's check, to issue a
duplicate thereof upon the execution of such bond to indemnify the
United States as the Secretary of the Treasury may prescribe : Pro-
vided, That when such original disbursing officer's check does not
exceed in amount the sum of fifty dollars the Secretary of the Treas-
ury may authorize the issuance of a duplicate at any time after the
expiration of thirty days and within three years from the date of
such disbursing officer's check. Act of June 19, 1906 (34 Stats., 301).
(This paragraph amends section 3646 of the Revised Statutes, as amended by
the act of March 23, 1906, and takes the place of paragraph 631.)
SUPPLEMENT. 1177
FOEMS OF KEEPING AND RENDERING ACCOUNTS.
635a. Hereafter, in all payments to be made under the provisions of
army appropriation acts, when the rate of compensation is annual,
payment shall be made monthly at the rate of one-twelfth of the
annual rate, and of such monthly rate and of all other monthly rates
of compensation one-thirtieth shall be the daily rate for computation
of pay for fractional parts of a month ; and for the purposes of this
Act each and every month shall be held to consist of thirty days,
whether the actual number of days be greater or less. Act of March
2,1903 (32 Stats., 934} .
(See Circular 33, War Department, 1904.)
635b. The annual compensation of officers, agents, and employees of
the United States for services rendered subsequent to June thirtieth,
nineteen hundred and four, shall be divided into twelve equal install-
ments, one of which shall be the pay for each calendar month ; and in
making payments for a fractional part of a month, one-thirtieth of
one of such installments, or of a monthly compensation, shall be the
rate to be paid for each day. For the purpose of computing such
compensation each and every month shall be held to consist of thirty
days, without regard to the actual number of days in any month, thus
excluding the thirty-first day of any month from the computation,
and treating February as if it actually had thirty days. Sec. h Act
of April 28, 1904 (33 Stats., 513}.
(See Circular 33, War Department, 1904.)
635c. Hereafter, where the compensation of any person in the mili-
tary service of the United States is annual or monthly the following
rules for division of time and computation of pay for services ren-
dered are hereby established: Annual compensation shall be divided
into twelve equal installments, one of which shall be the pay for each
calendar month ; and in making payments for a fractional part of a
month one-thirtieth of one of such installments, or of a monthly
compensation, shall be the daily rate of pay. For the purpose of
computing such compensation and for computing time for services
rendered during a fractional part of a month in connection with
annual or monthly compensation, each and every month shall be held
to consist of thirty days, without regard to the actual number of
days in any calendar month, thus excluding the thirty-first of any
calendar month from the computation and treating February as if
it actually had thirty days. Any person entering the service of the
United States during a thirty-one day month and serving until the
end thereof shall be entitled to pay for that month from the date of
entry to the thirtieth day of said month, both days inclusive; and
1178 MILITARY LAWS OF THE UNITED STATES.
any person entering said service during the month of February and
serving until the end thereof shall be entitled to one month's pay,
less as many thirtieths thereof as there were days elapsed prior to
date of entry : Provided, That for one day's unauthorized absence on
the thirty-first day of any calendar month one day's pay shall be for-
feited. Act of June 12, 1906 (34 Stats., 248).
(This paragraph takes the place of paragraphs 635a, 635b, and 1192a, and
amends paragraph 1192. See paragraph 802. The act of June 30, 1906 (34 Stats.,
763), contains a similar provision to the above, substituting for the words " any
person in the military service of the United States, " the words " any person in
the service of th£ United States.")
CHAPTER XV.
THE ADJUTANT-GENERAL'S DEPARTMENT.
663a. The officers of the Adjutant- General's Department, except the
Adjutant- General, and the officers of the Record and Pension Office
shall hereafter constitute one department of the Army, to be known
as the Military Secretary's Department ; and the Adjutant-General's
Office and the Record and Pension Office, heretofore constituting
bureaus of the War Department, shall hereafter constitute a consoli-
dated bureau to be known as the Military Secretary's Office of the War
Department. The officers so consolidated shall be borne on one list in
the order of rank held by them, and those of them who hold perma-
nent appointments as officers of the Adjutant-General's Department
or of the Record and Pension Office shall be entitled to promotion
below the grade of brigadier-general, as now provided by law and
in the order of their standing on said list. Except as otherwise pro-
vided herein, the laws now in force shall continue to govern the
appointment, promotion, and detail of all officers of the consolidated
department hereby created : Provided, That the officers of the said con-
solidated department shall be subject to the supervision of the Chief
of Staff in all matters pertaining to the command, discipline, or
administration of the existing military establishment: Provided
further, That no appointments or details to the grade of assistant
adjutant-general with the rank of major shall be made until the num-
ber of officers of that grade shall be reduced to less than ten, and
thereafter the number of officers of said grade in the consolidated
department shall be ten: Provided further, That of the officers con-
solidated as hereinbefore provided the senior in rank, who shall be
chief of the consolidated department and the title of whose office is
hereby changed to that of the military secretary, shall hereafter have
the rank of major-general, and the second senior of said officers shall
SUPPLEMENT. 1179
hereafter have the rank of brigadier-general : Provided further, That
when the office of Military Secretary with the rank of major-general
shall hereafter become vacant, it shall not be filled with said rank,
and thereafter the chief of the Military Secretary's Department shall
have the rank of a brigadier-general with the title of The Military
Secretary, and there shall be only one officer above the rank of colonel
in the said department. Except as hereinafter provided, the remain-
ing offices of the consolidated department shall retain the titles that
they now bear: Provided further, That when the office of Adjutant-
General shall become vacant the vacancy so created on the active list
of the Army shall not be filled, and thereafter the several officers now
designated by the title assistant adjutant-general and by the title
assistant chief of the Record and Pension Office shall be designated
by the title Military Secretary. Act of April 23, 1904 (33 Stats.,
(This paragraph merges the Adjutant-General's Department with the Record
and Pension Office; the Military Secretary's Department assuming the duties
heretofore appertaining to both. The laws applicable to the Adjutant-General's
Department and to the Record and Pension Office are now applicable to the
Military Secretary's Department, except where otherwise provided. See Chap-
ter XXV, Military Laws of the United States, "The Record and Pension
Office.")
663b. Nothing in this Act shall be so construed as to deprive any
officer of his commission or to increase the total number of officers of
the Army, except as herein specially provided, and all laws or parts
of laws inconsistent with the provisions of this Act are hereby repealed.
Acttf April 23, 1904 (33 Stats., 276}.
663c. Whenever the office of the Adjutant-General and the Record
and Pension Office shall be consolidated by operation of law, any
appropriation available at the time of such consolidation, or that may
thereafter become available, for the support of either of those offices
shall be equally available for the support of the bureau formed by the
consolidation, and all employees provided by law for either of said
offices, except such employees as were transferred by the Secretary
of War to the Military Information Division of the General Staff
prior to April first, nineteen hundred and four, shall be regarded as
employees of the consolidated bureau and shall be exclusively engaged
upon the work of that bureau as required in the case of the employees
of the Record and Pension Office by the Acts making appropriations
for the legislative, executive, and judicial expenses of the Govern-
ment for the fiscal years nineteen hundred and four and nineteen
hundred and five. Act of April 27, 1904 (33 Stats., 401).
663d. Hereafter the Military Secretary's Department of the Army
shall be known as the Adjutant-General's Department, the senior in
rank of the officers of said department shall be designated by the title
1180 MHJTABY LAWS OF THE UNITED STATES.
of The Adjutant-General, the other officers of the Department shall
be designated by the title of Adjutant-General, and The Military
Secretary's Office of the War Department shall be known as the
Adjutant-General's Office. Act of March £, 1907 (34 Stats., 1158).
THE RECRUITING SERVICE.
OATH OF ENLISTMENT.
679a. Hereafter the Secretary of War shall be authorized to de-
tach from the Army at large such number of enlisted men as may
be necessary to perform duty at the various recruit depots and the
United States military prison, and of the enlisted men so detached,
and while performing such duty, there shall be allowed for each
depot and the prison one who shall have the rank, pay, and allow-
ances of battalion or squadron sergeant-major, and for each recruit
and prison company one who shall have the rank, pay, and allowances
of first sergeant, five the rank. pay. and allowances of sergeant, and
six the rank, pay, and allowances of corporal, of the arm of the serv-
ice to which they respectively belong. Act of June 12, 1906 (34
Stat^ 242).
(See paragraph 679.)
679b. Hereafter recruit and prison companies shall have noncom-
missioned officers, musicians, artificers and cooks of the number and
grades allowed by law for companies of infantry. Act of March 2.
1907 (34Stuts.,1160).
(See paragraphs 679 and 679o.)
CHAPTER XVII.
THE JUDGE- ADVOCATE-GENERAL'S DEPARTMENT.
PROMOTIONS. APPOINTMENTS. DETAILS.
694a. Vacancies created or caused by this Act in the grade of major
may be filled by appointment of officers holding commission
judge-advocate of volunteers since April twenty- first, eighteen hun-
dred and ninety-eight. Vacancies which may occur thereafter in
the grade of major in the Judge- Advocate- General's Department
.-hall be filled by the appointment of officers of the line, or of per
who have satisfactorily served as judge-advocates of volunteers since
April twenty-first, eighteen hundred and ninety-eight, or of persons
SUPPLEMENT. 1181
from civil life who at date of appointment are not over thirty-five
years of age and who shall pass a satisfactory examination to be pre-
scribed by the Secretary of War. Sec. 15, Act of February 2, 1901
(31 Stats., 751}.
(This paragraph takes the place of paragraph 694, from which part of the
text was omitted.)
CHAPTER XVIII.
THE QUARTERMASTER'S DEPARTMENT.
PROMOTIONS, TRANSFERS, AND DETAILS.
706a. The military storekeeper*now on duty at the White House as
doorkeeper to the President may be continued in that employment and
shall receive the full pay and allowances of his grade from the date of
his retirement until relieved by the President. Act of Jime 30, 1902
(32 Stats., 511}.
POST QUARTERMASTER-SERGEANTS.
707a. Two hundred quartermaster-sergeants, at four hundred and
eight dollars each. Act of April 23, 1904 (33 Stats., 261}.
(See paragraph 707.)
THE PROCUREMENT OF SUPPLIES.
714a. For providing prizes to be established by the Secretary of
War for enlisted men of the Army who graduate from the Army
schools for bakers and cooks, the total amount of such prizes at the
various schools not to exceed nine hundred dollars per annum,
* * * dollars. Act of March 2, 1907 (34 Stats., 1166} .
(See paragraph 714.)
715a. For continuing the construction, equipment, and maintenance
of suitable buildings at military posts and stations for the conduct of
the post exchange, school, library, reading, lunch, amusement rooms,
and gymnasium, to be expended in the discretion and under the direc-
tion of the Secretary of War, five hundred thousand dollars: Pro-
vided, That not more than forty thousand dollars of the above
appropriation shall be expended at any one post or station. Act of
April 23, 1904 (33 Stats., 270}.
(See paragraphs 715 and 1551.)
716a. No part of the appropriations for the Quartermaster's De-
partment shall be expended on printing, unless the same shall be done
1182 MILITARY LAWS OF THE UNITED STATES.
by contract after due notice and competition, except in such cases as
the emergency will not admit of the giving notice of competition, and
in cases where it is impracticable to have the necessary printing done
by contract the same may be done, with the approval of the Secretary
of War, by the purchase of material and the hire of necessary labor for
the purpose. Act of March 2, 1907 (34 Stats., 1167) .
(This amends paragraph 716 by adding to the conditional prohibition the
"purchase of material.")
»
719a. Whenever the ice machines, steam laundries, and electric
plants shall not come in competition with private enterprise for sale
to the public, and in the opinion of the Secretary of War it becomes
necessary to the economical use and administration of such ice
machines, steam laundries, and electric plants as have been or may
hereafter be established in pursuance of law, surplus ice may be dis-
posed of, laundry work may be done for other branches of the Gov-
ernment, and surplus electric light and power may be sold on such
terms and in accordance with such regulations as may be prescribed
by the Secretary of War: Provided, That the funds received from
such sales and in payment of such laundry work shall be used to
defray the cost of operation of said ice, laundry, and electric plants ;
and the sales and expenditures herein provided for shall be accounted
for in accordance with the methods prescribed by law, and any sums
remaining, after such cost of maintenance and operation have been
defrayed, shall be deposited in the Treasury to the credit of the ap-
propriation from which the cost of operation of such plant is paid.
Act of March 2, 1907 (34 Stats., 1167).
TRANSPORTATION.
720a. In time of war or threatened war preference and precedence
shall, upon the demand of the President of the United States, be
given, over all other traffic, to the transportation of troops and
material of war, and carriers shall adopt every means within their
control to facilitate arid expedite the military traffic. Sec. 2, Act
of June 29, 1906 (34 Stats., 587).
USE OF TRANSPORTS.
724a. No part of this appropriation shall be applied to the payment
of the expenses of using transports in any other Government work
than the transportation of the Army, its supplies and employees ; and
when, in the opinion of the Secretary of War, accommodations are
available, transportation may be provided for the officers, enlisted
men, employees, and supplies of the Navy, the Marine Corps, and for
members and employees of the Philippine and Hawaiian governments,
SUPPLEMENT. 1183
officers of the War Department, Members of Congress, other officers
of the Government while traveling on official business, and without
expense to the United States, for the families of those persons herein
authorized to be transported, and when accommodations are available,
transportation may be provided for general passengers to the island
of Guam, rates and regulations therefor to be prescribed by the Sec-
retary of War. Act of March®, 1907 (34 Stats., 1170).
PUBLIC ANIMALS; VETERINARIANS.
732a. When practicable, horses shall be purchased in the open mar-
ket at all military posts or stations, when needed, at a maximum price
to be fixed by the Secretary of War. Act of March 2, 1907 (34 Stats.,
1168).
(This paragraph amends paragraph 732.)
FUEL AND FORAGE.
740a. Hereafter, fuel may be furnished to commissioned officers 'on
the active list by the Quartermaster's Department, for the actual use
of such officers only, at the rate of three dollars per cord for standard
oak wood, or at an equivalent rate for other kinds of fuel, the amount
so furnished to each to be limited to the officer's actual personal neces-
sities as certified to by him. Act of June 12, 1906 (34 Stats., 250).
740b. Hereafter the heat and light actually necessary for the au-
thorized allowance of quarters for officers and enlisted men shall be
furnished at the expense of the United States under such regulations
as the Secretary of War may prescribe. Act of March 2, 1907 (34
Stats., 1167).
OFFICERS' HORSES.
741a. When a mounted officer of the line is ordered to duty beyond
the seas or to make a change of station in the United States in which
the cost of transportation for the private horses which he is required
to keep exceeds the sum allowed for that purpose in the Army Regu-
lations, the Secretary of War is authorized, under such regulations in
respect to inspection and valuation as he may prescribe, to permit the
purchase of said horses by the Quartermaster's Department at a price
not exceeding the average contract price paid for horses during the
preceding fiscal year, from which sum shall be deducted one-seventh
of such contract price for each year, or major fraction of a year,
which may have elapsed since date of purchase by said officer. Act
of March 2, 1903 (32 Stats., 937).
741b. Nothing in the Act making appropriations for the legislative,
executive, and judicial expenses of the Government for the fiscal
1184 MILITARY LAWS OF THE UNITED STATES.
year nineteen hundred and seven, or any other Act, shall hereafter
be held or construed so as to deprive officers of the Army, wherever
on duty in the military service of the United States, of forage, bed-
ding, shoeing, or shelter for their authorized number of horses, or
of any means of transportation or maintenance therefor for which
provision is made by the terms of this Act. Act of March 2, 1907 (34
Stats., 1166).
WORKING PARTIES AND EXTRA DUTY PAY.
745a. Extra pay shall not be paid to any enlisted man
who receives extra-duty pay under existing laws or army regulations.
Act of March 2, 1907 (34 Stats., 1066).
(See paragraph 745).
CLOTHING AND BEDDING.
750a. For indemnity to officers and men of the Army for clothing
and bedding, and so forth, destroyed since April twenty-second, eight-
een hundred and ninety-eight, by order of medical officers of the
Army for sanitary reasons, four million dollars. Act of June 30,
1902, (32 Stats., 517).
(This provision appears also in subsequent army appropriation acts, and its
effect is to broaden the scope of paragraph 750 within certain dates.)
ACCOUNTABILITY FOR CLOTHING.
753a. Clothing balances accumulating to the soldier's credit under
section thirteen hundred and two shall, when payable to him upon
his discharge, be paid out of the appropriation for pay of the Army
for the then current fiscal year. Act of June 12, 1906 (34 Stats.,
246).
(This paragraph amends section 1308 of the Revised Statutes. See para-
graph 753.)
CHAPTER XIX.
THE SUBSISTENCE DEPARTMENT.
POST COMMISSARY-SERGEANTS. •
762a. Two hundred post commissary-sergeants, at four hundred
and eight dollars each, eighty-one thousand six hundred dollars.
Act of April 23, 1904 (33 Stats., 261).
(See paragraph 762.)
DUTIES.
768a. Hereafter officers intrusted with the disbursement of funds
for the subsistence of the Army are hereby authorized to keep, at
SUPPLEMENT. 1185
their own risk, in their personal possession for disbursement, such
restricted amounts of subsistence funds for facilitating payments of
small amounts to public creditors as shall from time to time be au-
thorized by the Secretary of War. Act of March 2, 1907 (34 Stats.,
1166}.
THE RATION.
769a. For difference between the cost of the ration at twenty- five
cents and the cost of rations differing in whole or in part from the
ordinary ration, to be issued to enlisted men in camp in the United
States during periods of recovery from low conditions of health con-
sequent upon service in unhealthy regions or in debilitating climates
(to be expended only under special authority of the Secretary of
War) ; and for ice to organizations of enlisted men stationed at such
places as the Secretary of War may determine; in all, seven million
dollars, to be expended under the direction of the Secretary of War,
and accounted for as " Subsistence of the Army," and for that pur-
pose to constitute one fund. Act of April 23, 1904 (38 Stats., 268}.
770a. Hereafter the emergency ration prescribed for use on emer-
gent occasions shall, when issued, be furnished in addition to the
regular ration under such regulations as may be prescribed by the
Secretary of War. Act of March 2, 1907 (34 Stats., 1165}.
(See section 5 of paragraph 770.)
COMMUTATION OF RATIONS.
791a. For payment of commutation of rations in lieu of the regular
established ration for members of the Nurse Corps (female) while
on duty in hospital, and for enlisted men? applicants for enlistment
held under observation, and general prisoners sick therein, at the
rate of thirty cents per ration (except that at the General Hospital
at Fort Bayard, New Mexico, fifty cents per ration is authorized for
enlisted patients in said hospital) to be paid to the surgeon in charge,
* * * dollars. Act of March 2, 1907 (34 Stats., 1166}.
(This paragraph amends paragraph 791. See paragraphs 769a and 773.)
CHAPTER XX.
THE PAY DEPARTMENT.
DUTIES.
801a. All the money hereinbefore appropriated for pay of the Army
and miscellaneous shall be disbursed and accounted for by officers of
the Pay Department as pay of the Army, and for that purpose shall
constitute one fund. Act of April 23, 1904 (33 Stats., 267}.
22924—08 75
1186 MILITARY LAWS OF THE UNITED STATES.
801b. Hereafter all payments to the militia under the provisions of
section fifteen of the Act of Congress approved January twenty-first,
nineteen hundred and three, and all allowances for mileage shall be
made solely from the sums herein appropriated for such purposes.
Act of April 23, 1904 (33 Stats., 267).
(See paragraphs 1662a and 1662b.)
801c. All the accounts of individual paymasters shall be analyzed
under the several heads of the appropriation and recorded in detail
by the Paymaster-General of the Army before said accounts are for-
warded to the Treasury Department for final audit. Act of April
23, 1904 (33 Stats., 267).
801d. All the money hereinbefore appropriated, except the appro-
priation for mileage of officers and contract surgeons when author-
ized by law, for pay of the Army and miscellaneous shall be dis-
bursed and accounted for by officers of the Pay Department as pay
of the Army, and for that purpose shall constitute one fund. Act
of June 12, 1906 (34 Stats., 248).
(This paragraph takes the place of paragraph 801a%)
801e. Hereafter all the accounts of individual paymasters shall be
analyzed under the several heads of the appropriation and recorded
in detail by the Paymaster-General of the Army before said accounts
are forwarded to the Treasury Department for final audit, and the
Secretary of War may hereafter authorize the assignment to duty
in the office of the Paymaster-General, not to exceed five paymasters'
clerks, now authorized by law. Act of March 2, 1905 (33 Stats.,
832).
(This paragraph takes the place of paragraph 801c.)
PAY OF COMMISSIONED OFFICERS.
81 la. Hereafter all commissioned officers of the Army may transfer
or assign their pay accounts, when due and payable, under such reg-
ulations and restrictions as the Secretary of War may prescribe. Act
of March 2, 1907 (34 Stats., 1159).
(See paragraph 909a.)
RETIRED OFFICERS.
824a. No part of this sum shall be used for payment of further in-
crease of longevity pay to officers now on the retired list, and
officers, hereafter retired from active service shall not be therefrom
allowed or paid any increase of longevity pay above the sum allowed
and paid to such officers at the date of retirement, unless retired on
account of wounds received in battle. Act of June 30, 1902 (32 Stats.,
511).
SUPPLEMENT. 1187
824b. Hereafter, except in case of officers retired on account of
wounds received in battle, no officer now on the retired list shall be
allowed or paid any further increase of longevity pay, and officers
hereafter retired, except as herein provided, shall not be allowed or
paid any further increase of longevity pay above that which had
accrued at date of their retirement. Act of March 2, 1903 (32 Stats.,
932}.
(This paragraph changes the law heretofore existing. See note 5 to para-
graph 824.)
PAY DURING ABSENCE.
828a, Leaves to be absent from the Philippine Islands, other than to
return to the United States, which may be granted officers of the
Army serving in said islands and sailing from Manila, shall be
regarded as taking effect on the dates such officers reach Manila, and
as terminating on the dates of their departure from Manila, in
returning to their stations. Act of March 2, 1907 (34 Stats., 1171).
BARRACKS AND QUARTERS.
830a. At all posts and stations where there are public quarters be-
longing to the United States officers may be furnished with quarters
in kind in such public quarters, and not elsewhere, by the Quarter-
master's Department, assigning to the officers of each grade,
respectively, such number of rooms as is stated in the following
table, namely : Second lieutenants, two rooms ; first lieutenants, three
rooms; captains, four rooms; majors, five rooms; lieutenant-
colonels, six rooms; colonels, seven rooms; brigadier-generals, eight
rooms; major-generals, nine rooms; lieutenant-general, ten rooms:
Provided further. That at places where there are no public quarters
commutation therefor may be paid by the Pay Department to the
officer entitled to the same at a rate not exceeding twelve dollars
per month per room. Act of March 2, 1907 (34 Stats., 1168}.
(This paragraph amends section 9 of the act of June 17, 1878, 20 Stats.,
page 151, and takes the place of paragraph 830.)
TRAVEL ALLOWANCES.
840a. Hereafter officers, active and retired, when traveling under
competent orders without troops, and retired officers who have so
traveled since March third, nineteen hundred and five, shall be. paid
seven cents per mile and no more ; distances to be computed and mile-
age to be paid over the shortest usually traveled routes, with
deduction as hereinafter provided; and payment and settlement
of mileage accounts of officers shall be made according to distances
1188 MILITAKY LAWS OF THE UNITED STATES.
and deductions computed over routes established and by mileage tables
prepared by the Paymaster-General of the Army under the direction
of the Secretary of War. Act of June 12, 1906 (34 Stats., 246).
(This paragraph amends paragraph 840.)
840b. When the station of an officer is changed while he is on leave
of absence he will on joining the new station be entitled to mileage
for the distance to the new station from the place where he received
the order directing the change, provided the distance be no greater
than from the old to the new station ; but if the distance be greater
he will be entitled to mileage for a distance equal to that from the
old to the new station only. Act of June 12, 1906 (34 Stats., 247).
(This paragraph is a reenactment of similar provisions contained in the
urgent deficiencies appropriation act of February 27, 1907, 34 Stats., 32.)
841a. For all sea travel actual expenses only shall be paid to officers,
contract surgeons, contract dental surgeons, and veterinarians, to pay-
masters' clerks, and to the expert accountant of the Inspector-Gen-
eral's Department, when traveling on duty under competent orders,
with or without troops, and the amount so paid shall not include any
shore expenses at port of embarkation or debarkation; but for the
purpose of determining allowances for all travel under orders, or for
officers and enlisted men on discharge, travel in the Philippine Archi-
pelago, the Hawaiian Archipelago^ the home waters of the United
States, and between the United States and Alaska shall not be re-
garded as sea travel and shall be paid for at the rates established by
law for land travel within the boundaries of the United States. Act
of June 12, 1906 (43 Stats., 247) .
(This paragraph takes the place of paragraphs 841 and 847a.)
843a. Officers who so desire may, upon application to the Quarter-
master's Department, be furnished under their orders transportation
requests for the entire journey by land, exclusive of sleeping and par-
lor car accommodations, or by water; and the transportation so fur-
nished shall, if travel was performed under a mileage status, be a
charge against the officer's mileage account, to be deducted at the rate
of three cents per mile by the paymaster paying the account, and of the
amount so deducted there shall be turned over to an authorized officer
of the Quartermaster's Department three cents per mile for trans-
portation furnished, except over any railroad which is a free or fifty
per centum land-grant railroad, for the credit of the appropriation for
the transportation of the Army and its supplies. Act of June 12, 1906
(34 Stats., 246) .
(This paragraph takes the place of paragraph 843.)
844a. When the established route of travel shall, in whole or in
part, be over the line of anv railroad on which the troops and supplies
SUPPLEMENT. 1189
of the United States are entitled to be transported free of charge, or
over any fifty per centum land-grant railroad, officers traveling as
herein provided for shall, for the travel over such roads, be furnished
with transportation requests, exclusive of sleeping and parlor car ac-
commodations, by the Quartermaster's Department. Act of June 12,
1906 (34 Stats., 2^6).
(This paragraph takes the place of paragraph 844.)
MILEAGE TO PAYMASTERS' CLERKS AND TO THE EXPERT ACCOUNTANT OF
847a. Hereafter actual expenses only shall be paid to paymasters'
clerks and the expert accountant of the Inspector-General's Depart-
ment for sea travel when traveling on duty to, from, or between our
island possessions. Act of June 30, 1902 (32 Stats., 511).
(See paragraph 847.)
PAY OF ENLISTED MEN.
862a. Hereafter first-class gunners of field artillery shall receive
two dollars per month and second-class gunners one dollar per month
in addition to their pay. Act of April 23, 1904 (33 Stats., 260) .
(See paragraph 1444.)
ADDITIONAL PAY.
865a. Expert riflemen, hereafter qualifying as such, shall receive
one dollar a month in addition to their pay. Act of March 2, 1903
(32 Stats., 929).
865b. Hereafter enlisted men qualifying as expert riflemen shall
receive in addition to their pay three dollars per month ; those quali-
fying as sharpshooters, two dollars per month, and those qualifying
as marksmen, one dollar per month, under such regulation as the
Secretary of War may prescribe. Act of June 12, 1906 (34 Stats.,
241).
(This takes the place of paragraph 865a.)
REENLISTMENT AND CONTINUOUS SERVICE PAY.
869a. All enlisted men of the Regular Army who served as commis-
sioned officers of United States Volunteers organized in eighteen
hundred and ninety-eight and eighteen hundred and ninety-nine, or
who have served or may be now serving as such in the Porto Rico
Provisional Regiment or in the Philippine Scouts, who, upon their
muster out, have returned or may return to the ranks of the Regular
Army, shall have such period of service counted as if it had been
rendered as enlisted men, and that they be entitled to all continuous-
1190 MILITAKY LAWS OF THE UNITED STATES.
service pay and to count, in computing the time necessary to enable
them to retire, as enlisted men. Act of March 2, 1903 (32 Stats., 934) •
(See paragraphs 1381 and 1381a.)
869b. All enlisted men of the Regular Army who have been ap-
pointed commissioned officers of Philippine Scouts subsequent to
March second, nineteen hundred and three, or who may hereafter be
so appointed, and who, upon their muster out, have returned or may
return to the ranks of the Regular Army, shall have such period of
service counted as if it had been rendered as enlisted men, and that
they be entitled to all continuous service pay and to count, in com-
puting the time necessary to enable them to retire, as enlisted men.
Act of June 12, 1906 ($4 Stats., 247).
(This paragraph amends paragraph 869a.)
DEPOSITS.
879a. Any enlisted man of the Army may deposit his savings, in
sums not less than five dollars, with any army paymaster, who
shall furnish him a deposit book, in which shall be entered the name
of the paymaster and of the soldier, and the amount, date, and place
of such deposit. The amount so deposited shall be accounted for in
the same manner as other public funds, and shall be deposited in the.
Treasury of the United States and kept as a separate fund, known as
pay of the Army deposit fund, repayment of which to the enlisted
man on discharge from the service shall .be made out of the fund
created by said deposits, and shall not be subject to forfeiture by sen-
tence of court-martial, but shall be forfeited by desertion, and shall
not be permitted to be paid until final payment on discharge, or to the
heirs or representatives of a deceased soldier, and that such deposits
be exempt from liability for such soldier's debts : Provided, That the
Government shall be liable for the amount deposited to the person
so depositing the same. Act of June 12, 1906 (34 Stats., 246).
(This paragraph amends Section 1305 of the Revised Statutes and takes the
place of paragraph 879.)
STOPPAGES AND DEDUCTIONS.
889a. So much of section forty-eight hundred and nineteen, Re-
vised Statutes, as requires that twelve and one-half cents per month
be deducted from the pay of retired enlisted men of the Army and
passed to the credit of the Commissioners of the Soldiers' Home in
the District of Columbia, be, and the same is hereby, repealed. Act
of June 12, 1906 (34 Stats., 242).
(This paragraph supersedes paragraphs 889 and 2271).
_ SUPPLEMENT. 1191
if UNIVE.
CHAPTER XXI.
THE MEDICAL DEPARTMENT.
CONTRACT SURGEONS DENTAL SURGEONS.
907a, For two hundred and fifty contract surgeons, four hundred
and fifty thousand dollars. Act of April 23, 1904 (33 Stats., 266).
(See paragraph 907.)
908a. Hereafter the number of dental surgeons authorized by law
shall be thirty-one, of which number one shall be detailed to the
United States Military Academy. Act of March 2, 1907 (34 Stats.,
1163).
(This paragraph amends paragraph 908.)
909a. Hereafter contract surgeons and contract dental surgeons on
duty in Alaska, Hawaii, the Philippine Islands, and Porto Rico may
transfer or assign their pay accounts, when due and payable, in the
methods now provided by regulations for commissioned officers of the
Army. Act of April 23, 1904 (33 Stats., 266).
909b. For the pay of civilian physicians employed to examine
physically applicants for enlistment and enlisted men, and to render
other professional services from time to time under proper authority,
* * * dollars. Act of March 2, 1907 (34 Stats., 1172).
DUTIES.
910a. The Surgeon-General of the Army, the Surgeon-General of
the Navy, and the supervising Surgeon-General of the Marine-Hos-
pital Service, are hereby constituted a board with authority, subject
to the approval of the Secretary of the Treasury, to promulgate from
time to time such rules as may be necessary in the judgment of said
board to govern the issue, suspension, and revocation of licenses for
the maintenance of establishments for the propagation and prepara-
tion of viruses, serums, toxins, antitoxins, and analogous products,
applicable to the prevention and cure of diseases of man, intended for
sale in the District of Columbia, or to be sent, carried, or brought for
sale from any State, Territory, or the District of Columbia, into
any other State, Territory, or the District of Columbia, or from
the United States into any foreign country, or from any foreign
country into the United States: Provided, That all licenses issued
for the maintenance of establishments for the propagation and prep-
aration in any foreign country of any virus, serum, toxin, antitoxin,
or product aforesaid, for sale, barter, or exchange in the United
1192 MILITARY LAWS OF THE UNITED STATES.
States, shall be issued upon condition that the licentiates will permit
the inspection of the establishments where said articles are propa-
gated and prepared, in accordance with section three of this Act.
Sec. 4, Act of July 1, 1902 (32 Stats., 729).
910b. There shall be an advisory board for the hygienic laboratory
provided by the Act of Congress approved March third, nineteen hun-
dred and one, for consultation with the Surgeon-General of the Public
Health and Marine-Hospital Service relative to the investigations to
be inaugurated, and the methods of conducting the same, in said lab-
oratory. Said board shall consist of three competent experts, to be
detailed from the Army, the Navy, and the Bureau of Animal Indus-
try by the Surgeon-General of the Army, the Surgeon-General of the
Navy, and the Secretary of Agriculture, respectively, which experts,
with the director of the said laboratory, shall be ex officio mem-
bers of the board, and serve without additional compensation. Five
other members of said board shall be appointed by the Surgeon-
General of the Public Health and Marine-Hospital Service, with the
approval of the Secretary of the Treasury, who shall be skilled in
laboratory work in its relation to the public health, and not in the
regular employment of the Government. The said five members shall
each receive compensation of ten dollars per diem while serving in
conference, as aforesaid, together with allowance for actual and neces-
sary traveling expenses and hotel expenses while in conference. Said
conference is not to exceed ten days in any one fiscal year. The term
of service of the five members of said board, not in the regular employ-
ment of the Government, first appointed shall be so arranged that one
of said members shall retire each year, the subsequent appointments
to be for a period of five years. Appointments to fill vacancies
occurring in a manner other than as above provided shall be made for
the unexpired term of the member whose place has become vacant.
Sec. 5, Act of July 1, 1902 (32 Stats., 713) .
913a. When a contract surgeon is in charge of a hospital he shall
have the same authority as a commissioned medical officer. Act of
April 23, 1904 (33 Stats., 266).
(See paragraph 907 and note thereto; see also A. R. 1418 and 1421 of 1904.)
MEDICAL ATTENDANCE PHILIPPINE CONSTABULARY.
913b. Whenever it shall be made to appear to the satisfaction of
the Chief of the Philippines Constabulary, or of ah assistant chief of
the Philippines Constabulary in charge of an established district, that
an officer or enlisted man of the Philippines Constabulary is suffering
from illness or injury incurred in line of duty and that there is not
within reach or available a medical officer required by law to render
medical or surgical attendance to such officer or enlisted man, as pro-
SUPPLEMENT. 1193
vided by law, the Chief of the Philippines Constabulary, or an assist-
ant chief of the Philippines Constabulary, as herein defined, may spe-
cially authorize the employment of an available medical officer or con-
tract surgeon of the United States Army to render such medical at-
tendance as may be required, and pay therefor in accordance with the
prescribed schedule of fees for medical services in the Philippines
Constabulary.
SEC. 2. In any case in which an officer or enlisted man of the Phil-
ippines Constabulary entitled to medical treatment is received at a
military hospital under the control of the United States military au-
thorities, the regular schedule of fees for subsistence and attendance
at such hospital shall be paid and no more, and in such cases payment
shall be made on proper vouchers by the paymaster of the Philippines
Constabulary to the chief surgeon of the Division of the Philippines,
and not as a personal fee to any officer in charge of such military hos-
pital.
SEC. 3. The appropriations for medical attendance of the Philip-
pines Constabulary are hereby made available for payment for medi-
cal attendance as herein provided, subject to the conditions prescribed
for such attendance in Act Numbered Eight hundred and seven, that
officers shall be entitled only to reimbursement for hospital charges
incurred by them by reason of injury or disability received in line of
duty.
SEC. 4. In all cases in which suspensions have been made by the
Auditor for the Philippine Islands on account of payments made by
disbursing officers for the Philippines Constabulary to medical offi-
cers or contract surgeons of the United States Army for medical serv-
ices rendered to members of the Philippines Constabulary, and such
payments have not been refunded, the Auditor is hereby authorized to
credit the accounts of such disbursing officers with the amounts so
suspended, and the appropriations against which the same were at
the time charged are hereby made available for such payments, and
for this purpose and to this extent this Act is made retroactive.
SEC. 5. In cases in which payments have been made by provin-
cial treasurers, upon the orders of the provincial boards, to officers
of the United States Army or to medical officers receiving salaries
from the Insular Government but whose duties did not require them
to render such service, for medical attendance upon provincial pris-
oners, the Auditor is hereby authorized to allow credit in the accounts
of such provincial treasurers for such payments when it shall be
shown to his satisfaction that there was available no medical officer
required by law to perform such medical service, the provisions of
Act Numbered One hundred and forty-eight to the contrary notwith-
standing: Provided, That such payments are reasonable, and a
1194 MILITAKY LAWS OF THE UNITED STATES.
certificate of the Commissioner of Public Health that the fees
charged in any case are reasonable may be accepted by the Auditor
as final. The president of a provincial board of health or of a mu-
nicipal board of health may be required to render, without charge,
to any officer or enlisted man of the Philippines Constabulary, or to
a provincial prisoner, such medical service as may be needed in any
case, upon notice by the officer in immediate command of such Con-
stabulary officer or enlisted man or by the governor of the province,
as the case may be, of the necessity for such service ; or to any indi-
gent person when directed to render such service by the provincial
governor or by a municipal president, as the case may be : Provided,
That in no case shall the president of a provincial board of health
or the president of a municipal board of health be paid for medical
services rendered to any person authorized by law to receive medical
attendance at the expense of the Insular Government or at the expense
of a province. Sees. 1 to 5, Act of the Philippine Commission of
November 7, 1903 (No. 985).
THE HOSPITAL, CORPS.
914a. The Hospital Corps of the United States Army shall consist
of sergeants first class, sergeants, corporals, privates first class, and
privates. Act of March 2, 1903 (32 Stats., 930).
(This paragraph amends paragraph 914. See also paragraphs 915-921, and
924.)
919a. The rank and pay of sergeants first class, sergeants, and pri-
vates first class shall be as now provided by law for hospital stewards,
acting hospital stewards, and privates of the Hospital Corps; corpo-
rals shall receive twenty dollars per month and privates sixteen dol-
lars, with such increase on account of length of service as is now or
may hereafter be allowed by law to other enlistedjnen. Act of March
2, 1903 (32 Stats., 930).
(See paragraphs 923 and 924).
924a. The Secretary of War is authorized to organize companies of
instruction, ambulance companies, field hospital, and other detach-
ments of the Hospital Corps as the necessities of the service may
require. Act of March 2, 1903 (32 Stats., 930) .
PURCHASES OF MEDICAL SUPPLIES.
932a. Purchase of medicines and medical stores, or the engagement
of services not personal for the Medical Department of the Army,
may be made by the Medical Department in open market in the
manner common among business men when the aggregate of the
SUPPLEMENT. 1195
amount required does not exceed two hundred dollars, but every such
purchase or employment shall be promptly reported to the Secretary
of War. Act of April 23, 1904 (33 Stats., 272) .
(Tliis paragraph amends paragraph 932.)
SALE OF MEDICAL SUPPLIES.
934a. Hereafter civilian employees of the Army stationed at mili-
tary posts may, under regulations to be made by the Secretary of
War, purchase necessary medical supplies when prescribed by a medi-
cal officer of the Army. Act of April 23, 1904 (33 Stats., 273).
(This paragraph amends paragraph 934.)
935a. Hereafter all moneys arising from dispositions of serviceable
medical and hospital supplies authorized by law and regulation shall
constitute one fund on the books of the Treasury Department, which
shall be available to replace medical and hospital supplies throughout
the fiscal year in which the dispositions were effected and throughout
the following fiscal year. Act of June 12, 1906 (34 Stats., 256) .
MISCELLANEOUS.
935b. For medical care and treatment not otherwise provided for,
including care and subsistence in private hospitals, of officers, en-
listed men, and civilian employees of the Army, of applicants for
enlistment, and of prisoners of war and other persons in military
custody or confinement, when entitled thereto by law, regulation, or
contract : Provided, That this shall not apply to officers and enlisted
men who are treated in private hospitals or by civilian physicians
while on furlough, * * * dollars. Act of March 2, 1907 (34
Stats., 1172).
935c. For the proper care and treatment of epidemic and con-
tagious diseases in the Army or at military posts or stations, includ-
ing measures to prevent the spread thereof, and the payment of
reasonable damages not otherwise provided for, for bedding and
clothing injured or destroyed in such prevention, * * * dollars.
Act of March 2, 1907 (34 Stats., 1172).
NATIONAL SANITARIUM AT HOT SPRINGS, SOUTH DAKOTA.
939a. One hundred and fifty thousand dollars is hereby appro-
priated for the erection of a National Sanitarium for Disabled Vol-
unteer Soldiers at Hot Springs, in the State of South Dakota, which
shall be erected by and under the direction of the Board of Managers
of the National Home for Disabled Volunteer Soldiers, which Sani-
tarium, when in a condition to receive members, shall be subject to
1196 MILITARY LAWS OP THE UNITED STATES.
such rules, regulations, and restrictions as shall be .provided by said
Board of Managers : Provided, That such Sanitarium shall be erected
on land donated to the United States by the people of Hot Springs,
South Dakota, and accompanied with a deed of perpetual lease to
one or more of the medical or hot springs for the use of the above-
named Sanitarium, the location and area of the land and springs of
hot water to be selected by the Board of Managers of the National
Home for Disabled Volunteer Soldiers, or such persons as they may
appoint to make the selection of location and hot springs, and that
exclusive jurisdiction shall be vested in said Board of Managers over
the premises occupied by said Sanitarium as over other realty held
by said Board until further enactment by the Congress of the
United States. Sec. 1, act of May 29, 1902 (32 Stats., 282).
939b. The further sum of twenty thousand dollars is hereby appro-
priated, to be used for the transportation to and from said Sanitarium
of such patients as may be ordered to said Sanitarium by said Board
of Managers and for equipping and maintaining said Sanitarium, sub-
ject to the aforesaid rules and regulations of said Board of Managers:
Provided, That any member of the National Home for Disabled Vol-
unteer Soldiers who shall be certified to said Sanitarium by the medi-
cal and legal authorities of said Board of Managers shall be admitted
and treated thereat until discharged therefrom or returned *o some
Branch of the National Home by order of said Board of Managers.
Sec. 2, Act of May 29, 1902 (32 Stats., 282).
GENERAL HOSPITAL, FORT BAYARD, NEW MEXICO.
939c. All persons admitted to treatment in the general hospital at
Fort Bayard, New Mexico, shall, while patients in said hospital, be
subject to the rules and articles for the government of the armies of
the United States. Act of June 12, 1906 (34 Stats., 255).
939d. The hospital at Fort Bayard, New Mexico, for the treatment
of tuberculosis, shall be opened to the treatment of the officers and
men of the Navy and Marine Corps. Act of March 2, 1907 (34
Stats., 1172).
CHAPTER XXII.
THE CORPS or ENGINEERS.
ORGANIZATION.
953a. The Corps of Engineers shall consist of one Chief of Engi-
neers with the rank of brigadier-general, of ten colonels, sixteen lieu-
tenant-colonels, thirty-two majors, forty-three captains, forty-three
first lieutenants, and forty-three second lieutenants. The enlisted
SUPPLEMENT. 1197
force provided in section eleven of this Act, and the officers serving
with the organized battalions thereof, shall constitute a part of the
line of the Army: Provided, That the Chief of Engineers shall be
appointed as now provided by law, and hereafter vacancies in the
Corps of Engineers in all other grades above that of second lieuten-
ant shall be filled by promotion, according to seniority, from the
Corps of Engineers. Any vacancies occurring at any time in the
grade of second lieutenant shall be left for future promotions from
the corps of cadets at the United States Military Academy. Act of
April 23, 1904 (33 Stats., 263).
(This paragraph contains an amendment to section 22 of the act of February
2, 1901. See paragraph 953. See also paragraphs 954~956, and 962.)
PUBLIC BUILDINGS AND GROUNDS.
978a. Section seventeen hundred and ninety-seven of the Revised
Statutes of the United States is hereby amended to read as follows :
" SEC. 1797. That the Chief of Engineers shall have charge of the
public buildings and grounds in the District of Columbia, under such
regulations as may be prescribed by the President, through the War
Department, except those buildings and grounds which are otherwise
provided for by law ; and when it shall be made to appear to the said
Chief of Engineers, or to the officer under his direction having imme-
diate charge of said public buildings and grounds, that any person
or persons is in unlawful occupation of any portion of said public
lands in the District of Columbia, it shall be the duty of said officer
in charge thereof to notify the marshal of the District of Columbia in
writing of such unlawful occupation, and the said marshal shall
thereupon cause the said trespasser or trespassers to be ejected from
said lands, and shall restore possession of the same to the officer
charged by law with the custody thereof." Act of April 28, 1902 (32
Stats., 152).
(This extends the duties of the Chief of Engineers. See paragraph 978.)
978b. Hereafter no public building, or the approaches thereto, other
than the Capitol building and the White House, in the District of
Columbia, shall be used or occupied in any manner whatever in con-
nection with ceremonies attending the inauguration of President of
the United States, or other public function, except as may hereafter be
expressly authorized by law. Act of April 28, 1902 (32 Stats., 152).
980a. The action of the Commissioners of the District of Columbia
in heretofore granting permits for the extension of any building or
buildings, or any part or parts thereof, in the District of Columbia,
beyond the building line and upon the streets and avenues of said city,
is hereby ratified, without prejudice, however, to the legal rights of
the Government in the event of the destruction by fire or otherwise
1198 MILITAKY LAWS OF THE UNITED STATES.
of any such structure. And hereafter no such permits shall be granted
except upon special application and with the concurrence of all of said
Commissioners and, where such extensions are to be placed upon build-
ings to be erected on land adjoining United States public reservations,
the approval of the Secretary of War. Act of June 21, 1906 (34
Stats., 385).
(This paragraph amends the act of March 3, 1891, 26 Stats., 868.)
THE WASHINGTON MONUMENT.
990a. For the care and maintenance of the Washington Monument,
namely: For one custodian, at one hundred dollars per month; one
steam engineer, at eighty dollars per month; one assistant steam
engineer, at sixty dollars per month ; one fireman, at fifty dollars per
month; one assistant fireman, at forty-five dollars per month; one
conductor of elevator car at seventy-five dollars per month; one
attendant on floor, at sixty dollars per month ; one attendant on top
floor, at sixty dollars per month ; three night and day watchmen, at
sixty dollars per month each. Act of April 28, 1904 (33 Stats., 493).
(This paragraph modifies the pay of certain employees as set forth in para-
graph 990.)
LIGHT-HOUSE BOARD.
1028a. The following-named offices, bureaus, divisions, and
branches of the public service, now and heretofore under the juris-
diction of the Department of the Treasury, and all that pertains to
the same, known as the Light-House Board, the Light-House Estab-
lishment,
*******
* * * are transferred from the Department of the Treasury to
the Department of Commerce and Labor, and the same shall here-
after remain under the jurisdiction and supervision of the last-named
Department. Sec. 4, Act of February 14, 1903 (32 Stats., 826).
(This paragraph affects the provisions of paragraphs 1024 and 1025.)
1028b. All duties performed and all power and authority now pos-
sessed or exercised by the head of any executive department in and
over any bureau, office, officer, board, branch, or division of the public
service by 'this Act transferred to the Department of Commerce and
Labor, or any business arising therefrom or pertaining thereto, or in
relation to the duties performed by and authority conferred by law
upon such bureau, officer, office, board, branch, or division of the
public service, whether of an appellate or revisory character or other-
wise, shall hereafter be vested in and exercised by the head of the said
Department of Commerce and Labor.
SUPPLEMENT. 1199
All duties, power, authority and jurisdiction, whether supervisory,
appellate or otherwise, noAv imposed or conferred upon the Secretary
of the Treasury by Acts of Congress relating to merchant vessels or
yachts, their measurement, numbers, names, registers, enrollments,
licenses, commissions, records, mortgages, bills of sale, transfers,
entry, clearance, movements and transportation of their cargoes and
passengers, owners, officers, seamen, passengers, fees, inspection,
equipment for the better security of life, and by Acts of Congress
relating to tonnage tax, boilers on steam vessels, the carrying of
inflammable, explosive or dangerous cargo on vessels, the use of
petroleum or other similar substances to produce motive power and
relating to the remission or refund of fines, penalties, forfeitures,
exactions or charges incurred for violating any provision of law
relating to vessels or seamen or to informer's shares of such fines, and
by Acts of Congress relating to the Commissioner and Bureau of
Navigation, Shipping Commissioners, their officers and employees-,
Steamboat-Inspection Service and any of the officials thereof, shall
be and hereby are transferred to and imposed and conferred upon the
Secretary of Commerce and Labor from and after the time of the
transfer of the Bureau of Navigation, the Shipping Commissioners
and the Steamboat-Inspection Service to the Department of Com-
merce and Labor, and shall not thereafter be imposed upon or exer-
cised by the Secretary of the Treasury. And all Acts or parts of
Acts inconsistent with this Act are, so far as inconsistent, hereby
repealed. Sec. 10, Act of February 14, 1903 (32 Stats., 829) .
THE MISSISSIPPI RIVER COMMISSION.
MISCELLANEOUS PROVISIONS RESPECTING THE MISSISSIPPI RIVEB.
1043a. Any funds which have been, or may hereafter be, appro-
priated by Congress for improving the Mississippi River between
the Head of the Passes and the mouth of the Ohio River, and which
may be allotted to levees, may be expended, under the direction of the
Secretary of War, in accordance with the plans, specifications, and
recommendations of the Mississippi River Commission, as approved
by the Chief of Engineers, for levees upon any part of said river be-
tween the Head of the Passes and Cape Girardeau, Missouri. Act of
June 4, 1906 (34 Stats., 208).
THE CALIFORNIA DEBRIS COMMISSION.
106 la. In case a majority of the members of said Commission, with-
in thirty days after the time so fixed, concur in the decision in favor
of the petitioner or petitioners, the said Commission shall thereupon
1200 MILITAKY LAWS OF THE UNITED STATES.
make an order directing the methods and specifying in detail the
manner in which operations shall proceed in such mine or mines;
what restraining or impounding works, if any, if facilities therefor
can be found, shall be built and maintained; how and of what ma-
terial ; where to be located ; and in general set forth such further re-
quirements and safeguards as will protect the public interests and
prevent injury to the said navigable rivers and the lands adjacent
thereto, with such further conditions and limitations as will observe
all the provisions of this Act in relation to the working thereof and
the payment of taxes on the gross proceeds of the same: Provided,
That all expense incurred in complying with said order shall be borne
by the owner or owners of such mine or mines : And provided further,
That where it shall appear to said Commission that hydraulic min-
ing may be carried on without injury to the navigation of said navi-
gable rivers and the lands adjacent thereto, an order may be made
authorizing such mining to be carried on without requiring the con-
struction of any restraining or impounding works or any settling
reservoirs : And provided also, That where such an order is made a
license to mine, no taxes provided for herein on the gross proceeds of
such mining operations shall be collected. Act of February 27, 1907
(34 Stats., 1002).
(This paragraph amends section 13 of the act of March- 1, 1893, and takes
the place of paragraph 1061.)
1081a. So much of the act of March third, eighteen hundred and
ninety-nine, as provides that the members of the California De-
bris Commission shall receive only actual expenses in lieu of mileage
while traveling on duty is hereby repealed, and hereafter the officers
of the commission shall receive the mileage allowed by law. Act of
June 6, 1900 (31 Stats., 631}.
(This paragraph takes the place of paragraph 1081.)
THE ISTHMIAN CANAL COMMISSION.
1085a. To enable the President to construct the canal and works
appurtenant thereto as provided in this Act, there is hereby created
the Isthmian Canal Commission, the same to be composed of seven
members, who shall be nominated and appointed by the President, by
and with the advice and consent of the Senate, and who shall serve
until the completion of said canal unless sooner removed by the Presi-
dent, and one of whom shall be named as the chairman of said Com-
mission. Of the seven members of said Commission at least four of
them shall be persons learned and skilled in the science of engineering,
and of the four at least one shall be an officer of the United States
Army, and at least one other shall be an officer of the United States
SUPPLEMENT. 1201
Navy, the said officers respectively being either upon the active or the
retired list of the Army or of the Navy. Said commissioners shall
each receive such compensation as the President shall prescribe until
the same shall have been otherwise fixed by the Congress. In addi-
tion to the members of said Isthmian Canal Commission, the President
is hereby authorized through said Commission to employ in said serv-
ice any of the engineers of the United States Army at his discretion,
and likewise to employ any engineers in civil life, at his discretion,
and any other persons necessary for the proper and expeditious prose-
cution of said work. The compensation of all such engineers and
other persons employed under this Act shall be fixed by said Com-
mission, subject to the approval of the President. The official salary
of any officer appointed or employed under this Act shall be deducted
from the amount of salary or compensation provided by or which
shall be fixed under the terms of this Act. Said Commission shall in
all matters be subject to the direction and control of the President,
and shall make to the President annually and at such other periods as
may be required, either by law or by the order of the President, full
and complete reports of all their actings and doings and of all moneys
received and expended in the construction of said work and in the per-
formance of their duties in connection therewith, which said reports
shall be by the President transmitted to Congress. And the said
Commission shall furthermore give to Congress, or either House of
Congress, such information as may at any time be required either by
Act of Congress or by the order of either House of Congress. The
President shall cause to be provided .and assigned for the use of the
Commission such offices as may, with the suitable equipment of the
same, be necessary and proper, in his discretion, for the proper dis-
charge of the duties thereof. Sec. 7, Act of June 28, 1902 (32 Stats.,
GOVERNMENT OF THE CANAL ZONE AT PANAMA.
1085b. The President is hereby authorized, upon the acquisition of
the property of the New Panama Canal Company and the payment to
the Eepublic of Panama of the ten millions of dollars provided by
article fourteen of the treaty between the United States and the Re-
public of Panama, the ratifications of which wyere exchanged on the
twenty-sixth day of February, nineteen hundred and four, to be paid
to the latter Government, to take possession of and occupy on behalf
of the United States the zone of land and land under water of the
width of ten miles, extending to the distance of five miles on each side
of the center line of the route of the canal to be constructed thereon,
which said zone begins in the Caribbean sea three marine miles from
mean low-water mark and extends to and across the Isthmus of Pan-
ama into the Pacific Ocean to the distance of three marine miles from
22924—08 76
1202 MILITAKY LAWS OF THE UNITED STATES.
mean low-water mark, and also of all islands within said zone, and in
addition thereto the group of islands in the Bay of Panama named
Perico, Naos, Culebra, and Flamenco, and, from time to time, of any
lands and waters outside of said zone which may be necessary and con-
venient for the construction, maintenance, operation, sanitation, and
protection of the said canal, or of any auxiliary canals or other works
necessary and convenient for the construction, maintenance, operation,
sanitation, and protection of said enterprise, the use, occupation, and
control whereof were granted to the United States by article two of
said treaty. The said zone is hereinafter referred to as " the Canal
Zone." The payment of the ten millions of dollars provided by
article fourteen of said treaty shall be made in lieu of the indefinite
appropriation made in the third section of the Act of June twenty-
eighth, nineteen hundred and two, and is hereby appropriated for said
purpose.
SEC. 2. That until the expiration of the Fifty-eighth Congress,
unless provision for the temporary government of the Canal Zone be
sooner made by Congress, all the military, civil, and judicial powers
as well as the power to make all rules and regulations necessary for
the government of the 'Canal Zone and all the rights, powers, and
authority granted by the terms of said treaty to the United States
snail be vested in such person or persons and shall be exercised in such
manner as the President shall direct for the government of said Zone
and maintaining and protecting the inhabitants thereof in the free
enjoyment of their liberty, property, and religion. Sees. 1 and 2,
Act of April 28, 1904 ($3 Stats.., J$9).
1085c. That the Secretary of the Treasury is hereby authorized to
borrow on the credit of the United States from time to time, as the
proceeds may be required to defray expenditures authorized by this
Act (such proceeds when received to be used only for the purpose of
meeting such expenditures) , the sum of one hundred and thirty mil-
lion dollars, or so much thereof as may be necessary, and to prepare
and issue therefor coupon or registered bonds of the United States in
such form as he may prescribe, and in denominations of twenty dol-
lars or some multiple of that sum, redeemable in gold coin at the
pleasure of the United States after ten years from the date of their
issue, and payable thirty years from such date, and bearing interest
payable quarterly in gold coin at the rate of two per centum per an-
num ; and the bonds herein authorized shall be exempt from all taxes
or duties of the United States, as well as from taxation in any form
by or under State, municipal, or local authority : Provided, That said
bonds may be disposed of by the Secretary of the Treasury at not less
than par, under such regulations as he may prescribe, giving to all
citizens of the United States an equal opportunity to subscribe there-
for, but no commissions shall be allowed or paid thereon ; and a sum
SUPPLEMENT. 1203
not exceeding one-tenth of one per centum of the amount of the bonds
herein authorized is hereby appropriated, out of any money in the
Treasury not otherwise appropriated, to pay the expense of prepar-
ing, advertising, and issuing the same. Sec. 8, Act of June 28, 1902
(32 Stats., 484).
1085d. All expenditures from the appropriation herein made for
the Isthmian Canal shall be paid from, or reimbursed to the Treas-
ury of the United States out of, the proceeds of the sale of bonds
authorized in section eight of the said Act approved June twenty-
oighth, nineteen hundred and two. Sec. 1, Act of March 4, 1907 (34
Stats., 1369).
1085e. That the two per cent bonds of the United States authorized
by section eight of the Act entitled "An Act to provide for the con-
struction of a canal connecting the waters of the Atlantic and Pacific
oceans," approved June twenty-eight, nineteen hundred and two,
shall have all the rights and privileges accorded by law to other two
per cent bonds of the United States, and every national banking asso-
ciation having on deposit, as provided by law, such bonds issued
under the provisions of said section eight of said Act approved June
twenty-eight, nineteen hundred and two, to secure its circulating
notes, shall pay to the Treasurer of the United States, in the months
of January and July, a tax of one-fourth of one per cent each half
year upon the average amount of such of its notes in circulation as are
based upon the deposit of said two per cent bonds; and such tases
shall be in lieu of existing taxes on its notes in circulation imposed
by section fifty-two hundred and fourteen of the Revised Statutes.
Section 1, Act of December 21, 1905 (34 Stats., 5).
1085f. The President shall annually, and at such other periods as
may be provided, either by law or by his order, require full and com-
plete reports to be made to him by the persons appointed or em-
ployed by him in charge of the government of the Canal Zone, the
construction of the Isthmian Canal, and the operation of the Panama
Railroad, including an itemized account of all moneys received and
expended, which said reports shall be by the President transmitted
to Congress. The President shall annually cause to be made, by the
persons appointed and employed by him in charge of the government
of said Canal Zone and the construction of said canal, estimates of
expenditures and appropriations, in detail as far as practicable,
which estimates shall cover all annual salaries paid to persons em-
ployed on said work, excepting laborers and skilled laborers, and
shall be submitted to Congress in the manner provided in section five
of the Act entitled "An Act making appropriations for the legislative,
executive, and judicial expenses of the Government for the fiscal year
ending June thirtieth, nineteen hundred and two, and for other pur-
poses." And no money shall be expended for any of the purposes of
1204 MILITAKY LAWS OF THE UNITED STATES.
constructing and maintaining said Isthmian Canal, or for any ex-
penses incident thereto, except in accordance with appropriations
made by Congress. Sec. 3, Act of December 21, 1905 (34 Stats., 6).
(This paragraph amends paragraph 1085a.)
1085g. The President is hereby authorized to cause to be entered
into such contract or contracts as may be deemed necessary for the
proper excavation, construction, completion, and defense of said
canal, harbors, and defenses, by the route finally determined upon
under the provisions of this Act. Appropriations therefor shall from
time to time be hereafter made, not to exceed in the aggregate the
additional sum of one hundred and thirty-five millions of dollars
should the Panama route be adopted, or one hundred and eighty
millions of dollars should the Nicaragua route be adopted. Sec. 5,
Act of June 28, 1902 (32 Stats., 483).
1085h. Nothing contained in section five of the Act of June twenty-
eighth, nineteen hundred and two, entitled "An Act to provide for
the construction of a canal connecting the waters of the Atlantic and
Pacific oceans," shall prevent the President from entering into such
contract or contracts as may be deemed expedient by him for the com-
pletion of the construction of the Panama Canal. Sec. 6, Act of
March 4, 1907 (34 Stats., 1370).
10851. The appropriations for the pay of officers and employees of
the several departments on the Isthmus under the Act of June thir-
tieth, nineteen hundred and six, shall apply to the pay of such officers
and employees when necessarily temporarily detailed upon duty
away from the Isthmus. Sec. 7, Act of March 4, 1907 (34 Stats.,
1370).
1085J. Purchases of material and equipment for use in the construc-
tion of the Panama Canal shall be restricted to articles of domestic
production and manufacture, from the lowest responsible bidder, unless
the President shall, in any case, deem the bids or tenders therefor to
be extortionate or unreasonable. Joint Res. of June 25, 1906 (34
Stats., 835).
1085k. All laws affecting imports of articles, goods, wares, and mer-
chandise and entry of persons into the United States from foreign
countries shall apply to articles, goods, wares, and merchandise and
persons coming from the Canal Zone, Isthmus of Panama, and seek-
ing entry into any State or Territory of the United States or the Dis-
trict of Columbia. Act of March 2, 1905 (33 Stats., 843).
10851. Hereafter the accounts for the Isthmian Canal- Commission
shall be audited by the Auditor for the War Department. Act of
February 3, 1905 (33 Stats., 647).
1085m. The provisions of the Act entitled "An Act relating to the
limitations of the hours of daily service of laborers and mechanics
SUPPLEMENT. 1205
employed upon the public works of the United States and of the Dis-
trict of Columbia,-' approved August first, eighteen hundred and
ninety-two, shall not apply to alien laborers employed in the con-
struction of the Isthmian Canal within the Canal Zone. Act of Feb-
ruary, 27, 1906 (34 Stats., 33}.
1085n. The provisions of an Act entitled "An Act relating to the
limitations of the hours of daily service of laborers and mechanics
employed upon the public works of the United States and of the Dis-
trict of Columbia," approved August first, eighteen hundred and
ninety-two, and of an Act entitled "An Act making appropriations to
supply urgent deficiencies in the appropriations for the fiscal year
ending June thirtieth, nineteen hundred and six, and for prior years,
and for other purposes," approved February twenty-seventh, nineteen
hundred and six, shall not apply to unskilled alien laborers and to the
foremen and superintendents of such laborers employed in the con-
struction of the isthmian canal within the Canal Zone. Sec. 4i Act
of June 30, 1906 (34 Stats., 669).
(This paragraph amends paragraph 1085m.)
FORTIFICATIONS.
1086a. Hereafter in acquiring sites for fortifications it shall be the
duty of the Secretary of War, in every case of such acquirement, to
purchase or otherwise procure at the same time, under this and future
appropriations for this purpose, sufficient land for necessary barracks
and quarters for the artillery troops required in connection with each
of such fortifications; but no part of the money appropriated for
military posts shall be used for the purchase of any land except as
herein specifically provided. Act of April 28, 1904 (3$ Stats., 497).
1086b. It shall be the duty of the Secretary of War to apply the
money herein appropriated under the heading " Fortifications and
other works of defense," in carrying on the various works, by con-
tract or otherwise, as may be most economical and advantageous
to the Government. Where said works are done by contract, such
contract shall be made after sufficient public advertisement for pro-
posals, in such manner and form as the Secretary of War shall pre-
scribe; and such contracts shall be made with the lowest responsible
bidders, accompanied by such securities as the Secretary of War shall
require, conditioned for the faithful prosecution and completion of
the work according to such contract. Act of April 21, 1904 (3$
Stats., 234).
THE NAVIGABLE WATERS OF THE UNITED STATES.
1097a. Grand River in the State of Missouri above the city of
Brunswick, in the county of Chariton in said State, is hereby declared
1206 MILITAEY LAWS OF THE UNITED STATES.
to be not a navigable stream and shall be so treated by the Secretary
of War and by all other authorities. Act of February 15, 1905 (33
Stats., 715).
RIVER AND HARBOR WORKS.
1098a. There shall be organized in the Office of the Chief of Engi-
neers, United States Army, by detail from time to time from the
Corps of Engineers, a board of five engineer officers, whose duties
shall be fixed by the Chief of Engineers, and to whom shall be referred
for consideration and recommendation, in addition to any other duties
assigned, so far as in the opinion of the Chief of Engineers may be
necessary, all reports upon examinations and surveys provided for by
Congress, and all projects or changes in projects for works of river
and harbor improvement heretofore or hereafter provided for. And
the board shall submit to the Chief of Engineers recommendations as
to the desirability of commencing or continuing any and all improve-
ments upon which reports are required. And in the consideration of
such works and projects the board shall have in view the amount and
character of commerce existing or reasonably prospective which will
be benefited by the improvement, and the relation of the ultimate cost
of such work, both as to cost of construction and maintenance, to the
public commercial interests involved, and the public necessity for tKe
work and propriety of its construction, continuance, or maintenance
at the expense of the United States. And such consideration shall be
given as time permits to such works as have heretofore been provided
for by Congress, the same as in the case of new works proposed. The
board shall, when it considers the same necessary, and with the sanc-
tion and under orders from the Chief of Engineers, make, as a board
or through its members, personal examinations of localities. And all
facts, information, and arguments which are presented to the board
for its consideration in connection with any matter referred to it by
the Chief of Engineers shall be reduced to and submitted in writing,
and made a part of the records of the Office of the Chief of Engineers.
It shall further be the duty of said board, upon a request transmitted
to the Chief of Engineers by the Committee on River and Harbors
of the House of Representatives, or the Committee on Commerce of
the Senate, in the same manner to examine and report through the
Chief of Engineers upon any projects heretofore adopted by the Gov-
ernment or upon which appropriations have been made, and report
upon the desirability of continuing the same or upon any modifica-
tions thereof which may be deemed desirable.
The board shall have authority, with the approval of the Chief of
Engineers, to rent quarters, if necessary, for the proper transaction
of its business, and to employ such civil employees as may, in the
opinion of the Chief of Engineers, be required for properly transact-
SUPPLEMENT. 1207
ing the business assigned to it, and the necessary expenses of the board
shall be paid from allotments made by the Chief of Engineers from
any appropriations made by Congress for the work or works to which
the duties of the board pertain. Sec. 3, Act of June 13, 1902 (32
Stats., 372).
1103a. No appropriations heretofore or hereafter made for improv-
ing harbors and deepening channels shall be used for the construction
of Government dredges for use on the Great Lakes or on the Atlantic
coast north of Cape Henry unless there shall be a specific appropria-
tion for that purpose : Provided, however, That this provision shall
not apply to any dredge the construction of which has heretofore been
authorized by the Secretary of War. Sec. 4, Act of April 28, 1904
(33 Stats., 452).-
PURCHASE AND SALE OF LANDS.
1106a. When any land or other property which has been heretofore
or may be hereafter purchased or acquired for the improvement of
rivers and harbors is no longer needed, or is no longer serviceable, it
may be sold in such manner as the Secretary of War may direct, and
the proceeds credited to the appropriation for the work for which it
was purchased or acquired ; and the Secretary of War may direct the
transfer of any property employed in river and harbor works, and in
such event the property so transferred shall be valued and credited to
the project upon which it was theretofore used and charged to the
project to which it shall be transferred. The Secretary may also
direct a temporary transfer of any property employed in the improve-
ment of rivers and harbors whenever, in his judgment, such transfer
would secure efficient or economical results, and such adjustment in
the way of charges and credits shall be made between the projects
affected as may be equitable. Sec. 5, Act of June 13, 1902 (32 Stats.,
373).
1106b. Whenever any person, company, or corporation, municipal
or private, shall undertake to secure any land or easement therein,
needed in connection with a work of river and harbor improvement
duly authorized by Congress, for the purpose of conveying the same
to the United States free of cost, or for the purpose of constructing,
maintaining, and operating locks, dry docks, or other works to be
conveyed to the United States free of cost, and of constructing, main-
taining and operating dams for use in connection therewith, and
shall be unable for any reason to obtain the same by purchase and
acquire a valid title thereto, the Secretary of War may, in his discre-
tion, cause proceedings to be instituted in the name of the United
States for the acquirement by condemnation of said land or easement,
and it shall be the duty of the Attorney-General of the United States
to institute and conduct such proceedings upon the request of the
1208 MILITARY LAWS OF THE UNITED STATES.
Secretary of War: Provided, That all expenses of said proceedings
and any award that may be made thereunder shall be paid by the said
person, company, or corporation, to secure which payment the Secre-
tary of War may require the said person, company, or corporation to
execute a proper bond in such amount as he may deem necessary
before said proceedings are commenced. Act of June 29, 1906 (34
Stats., 632}.
(This paragraph amends paragraph 1106.)
OPERATION OF CANALS AND OTHER WORKS OF IMPROVEMENT.
1113a. That section four of the river and harbor Act of August
eighteenth, eighteen hundred and ninety-four, be, and is hereby,
amended so as to read as follows :
" SEC. 4. That it shall be the duty of the Secretary of War to pre-
scribe such rules and regulations for the use, administration, and
navigation of any or all canals and similar works of navigation that
now are, or that hereafter may be, owned, operated, or maintained by
the United States as in his judgment the public necessity may re-
quire; and he is also authorized to prescribe regulations to govern
the speed and movement of vessels and other water craft in any pub-
lic navigable channel which has been improved under authority of
Congress, whenever, in his judgment, such regulations are necessary
to protect such improved channels from injury, or to prevent inter-
ference with the operations of the United States in improving navi-
gable waters or injury to any plant that may be employed in such
operations. Such rules and regulations shall be posted, in conspicu-
ous and appropriate places, for the information of the public; and
every person and every corporation which shall violate such rules and
regulations shall be deemed guilty of a misdemeanor and, on convic-
tion thereof in any district court of the United States within whose
territorial jurisdiction such offense may have been committed, shall
be punished by a fine not exceeding five hundred dollars, or by im-
prisonment (in the case of a natural person) not exceeding six
months, in the discretion of the court." Sec. 11, Act of June 13, 1902
(32 Stats., 37 !>}.
(This paragraph amends paragraphs 1112 and 1113.)
BRIDGES, ETC., OVER THE NAVIGABLE WATERS OF THE UNITED STATES.
1114a. Any bridge built in accordance with the provisions of this
Act shall be a lawful structure and shall be recognized and known as
a post route, upon which no higher charge shall be made for the
transmission over the same of the mails, the troops, and the munitions
of war of the United States than the rate per mile paid for the trans-
SUPPLEMENT. 1209
portation over any railroad, street railway, or public highway lead-
ing to said bridge ; and the United States shall have the right to con-
struct, maintain, and repair, without any charge therefor, telegraph
and telephone lines across and upon said bridge and its approaches;
and equal privileges in the use of said bridge and its approaches shall
be granted to all telegraph and telephone companies. Sec. 2, Act of
March 23, 1906 (34 Stats., 85).
1114b. When, hereafter, authority is granted by Congress to any
persons to construct and maintain a dam for water power or other
purposes across any of the navigable waters of the United States,
such dams shall not be built or commenced until the plans and specifi-
cations for its construction, together with such drawings of the pro-
posed construction and such map of the proposed location as may be
required for a full understanding of the subject, have been submitted
to the Secretary of War and Chief of Engineers for their approval, or
until they shall have approved such plans and specifications and the
location of such dam and accessory works; and when the plans for
any dam to be constructed under the provisions of this Act have been
approved by the Chief of Engineers and by the Secretary of War it
shall not be lawful to deviate from such plans either before or after
completion of the structure unless the modification of such plans has
previously been submitted to and received the approval of the Chief
of Engineers and of the Secretary of War: Provided, That in ap-
proving of said plans and location such conditions and stipulations
may be imposed as the Chief of Engineers and the Secretary of War
may deem necessary to protect the present and future interests of the
United States, which may include the condition that such persons
shall construct, maintain, and operate, without expense to the United
States, in connection with said dam and appurtenant works, a lock or
locks, booms, sluices, or any other structures which the Secretary of
War and the Chief of Engineers at any time may deem necessary in
the interest of navigation, in accordance with such plans as they may
approve, and also that whenever Congress shall authorize the con-
struction of a lock, or other structures for navigation purposes, in
connection with such dam, the person owning such dam shall convey
to the United States, free of cost, title to such land as may be required
for such constructions and approaches, and shall grant to the United
States a free use of water power for building and operating such con-
structions. Sec. 1, Act of June 21, 1906 (34 Stats., 386) .
1114c. The right is hereby reserved to the United States to con-
struct, maintain, and operate, in connection with any dam built under
the provisions of this Act, a suitable lock or locks, or any other struc-
tures for navigation purposes, and at all times to control the said dam
and the level of the pool caused by said dam to such an extent as may
1210 MILITAKY LAWS OF THE UNITED STATES.
be necessary to provide proper facilities for navigation. Sec. 2, Act
of June 21, 1906 (34 Stats., 386).
1114d. The person, company, or corporation building, maintaining,
or operating any dam and appurtenant works, under the provisions
of this Act, shall be liable for any damage that may be inflicted there-
by upon private property, either by overflow or otherwise. The per-
sons owning or operating any such dam shall maintain, at their own
expense, such lights and other signals thereon and such fishways as
the Secretary of Commerce and Labor shall prescribe. Sec. 3, Act of
June 21, 1906 (34 Stats., 386).
1114e. All rights acquired under this Act shall cease and be deter-
mined if the person, company, or corporation acquiring such rights
shall, at any time, fail to comply with any of the provisions and re-
quirements of the Act, or with any of the stipulations and conditions
that may be prescribed as aforesaid by the Chief of Engineers and
the Secretary of War. Sec. 4, Act of June 21, 1906 (34 Stats., 386).
1114f. Any persons who shall fail or refuse to comply with the
lawful order of the Secretary of War and the Chief of Engineers,
made in accordance with the provisions of this Act, shall be deemed
guilty of a violation of this Act, and any persons who shall be guilty
of a violation of this Act shall be deemed guilty of a misdemeanor and
on conviction thereof shall be punished by a fine not exceeding five
thousand dollars, and every month such persons shall remain in de-
fault shall be deemed a new offense and subject such persons to
additional penalties therefor; and in addition to the penalties above
described the Secretary of War and the Chief of Engineers may, upon
refusal of the persons owning or controlling any such dam and acces-
sory works to comply with any lawful order issued by the Secretary
of War or Chief of Engineers in regard thereto, cause the removal of
such dam and accessory works as an obstruction to navigation at the
expense of the persons owning or controlling such dam, and suit for
such expense may be brought in the name of the United States against
such persons, and recovery had for such expense in any court of
competent jurisdiction; and the removal of any structures erected or
maintained in violation of the provisions of this Act or the order or
direction of the Secretary of War or Chief of Engineers made in pur-
suance thereof may be enforced by injunction, mandamus, or other
summary process, upon application to the circuit court in the district
in which such structure may, in whole or in part, exist, and proper
proceedings to this end may be instituted under the direction of the
Attorney-General of the United States at the request of the Chief of
Engineers or the Secretary of War; and in case of any litigation
arising from any obstruction or alleged obstruction to navigation
created by the construction of any dam under this Act, the cause or
SUPPLEMENT. 1211
question arising may be tried before the circuit court of the United
States in any district in which any portion of said obstruction or dam
touches. Sec. 5, Act of June 21, 1906 (34 Stats., 386).
1114g. Whenever Congress shall hereafter by law authorize the
construction of any dam across any of the navigable waters of the
United States, and no time for the commencement and completion of
such dam is named in said Act, the authority thereby granted shall
cease and be null and void unless the actual construction of the dam
authorized in such Act be commenced within one year and completed
within three years from the date of the passage of such Act. Sec. 6,
Act of June 21, 1906 (34 Stats., 387).
1114h. The right to alter, amend, or repeal this Act is hereby ex-
pressly reserved as to any and all dams which may be constructed in
accordance with the provisions of this Act, and the United States shall
incur no liability for the alteration, amendment, or repeal thereof to
the owner or owners or any other persons interested in any dam which
shall have been constructed in accordance with its provisions. Sec. 7,
Act of June 21, 1906 (34 Stats., 387).
11141. The word " persons " as used in this Act shall be construed
to import both the singular and the plural, as the case demands, and
shall include corporations, companies, and associations. Sec. 8, Act of
June 21, 1906 (34 Stats., 387).
1115a. No bridge erected or maintained under the provisions of
this Act shall at any time unreasonably obstruct the free navigation
of the waters over which it is constructed, and if any bridge erected
in accordance with the provisions of this Act shall, in the opinion of
the Secretary of War, at any time unreasonably obstruct such navi-
gation, either on account of insufficient height, width of span, or other-
wise, or if there be difficulty in passing the draw opening or the draw-
span of such bridge by rafts, steamboats, or other water craft, it shall
be the duty of the Secretary of War, after giving the parties inter-
ested reasonable opportunity to be heard, to notify the persons own-
ing or controlling such bridge to so alter the same as to render navi-
gation through or under it reasonably free, easy, and unobstructed,
stating in such notice the changes required to be made, and prescrib-
ing in each case a reasonable time in which to make such changes, and
if at the end o£ the time so specified the changes so required have not
been made, the persons owning or controlling such bridge shall be
deemed guilty of a violation of this Act; and all such alterations
shall be made and all such obstructions shall be removed at the expense
of the persons owning or operating said bridge. The persons owning
or operating any such bridge shall maintain, at their own expense,
such lights and other signals thereon as the Secretary of Commerce
and Labor shall prescribe. If the bridge shall be constructed with a
draw, then the draw shall be opened promptly by the persons owning
1212 MILITARY LAWS OF THE UNITED STATES.
or operating such bridge upon reasonable signal for the passage of
boats and other water craft. If tolls shall be charged for the transit
over any bridge constructed under the provisions of this Act, of
engines, cars, street cars, wagons, carriages, vehicles, animals, foot
passengers, or other passengers, such tolls shall be reasonable and
just, and the Secretary of War may, at any time, and from time to
time, prescribe the reasonable rates of toll for such transit over such
bridge, and the rates so prescribed shall be the legal rates and shall
be the rates demanded and received for such transit. Sec. 4t Act of
March 23, 1906 (34 Stats., 85).
(This paragraph and paragraph 1115& take the place of paragraphs 1115,
1116, and 1117.)
1115b. Any persons who shall fail or refuse to comply with the
lawful order of the Secretary of War or the Chief of Engineers, made
in accordance with the provisions of this Act, shall be deemed guilty
of a violation of this Act, and any persons who shall be guilty of a
violation of this Act shall be deemed guilty of a misdemeanor and on
conviction thereof shall be punished in any court of competent juris-
diction by a fine not exceeding five thousand dollars, and every month
such persons shall remain in default shall be deemed a new offense and
subject such persons to additional penalties therefor ; and in addition
to the penalties above described the Secretary of War and the Chief
of Engineers may, upon refusal of the persons owning or controlling
any such bridge and accessory works to comply with any lawful order
issued by the Secretary of War or Chief of Engineers in regard
thereto, cause the removal of such bridge and accessory works at the
expense of the persons owning or controlling such bridge, and suit
for such expense may be brought in the name of the United States
against such persons, and recovery had for such expense in any court
of competent jurisdiction ; and the removal of any structures erected
or maintained in violation of the provisions of this Act or the order
or direction of the Secretary of War or Chief of Engineers made in
pursuance thereof may be enforced by injunction, mandamus, or other
summary process, upon application to the circuit court in the district
in which such structure may, in whole or in part, exist, and proper
proceedings to this end may be instituted under the direction of the
Attorney- General of the United States at the request of the Secretary
of War ; and in case of any litigation arising from any obstruction or
alleged obstruction to navigation created by the construction of any
bridge under this Act, the cause or question arising may be tried
before the circuit court of the United States in any district which
any portion of such obstruction or bridge touches. Sec. 5, Act of
March 23, 1906 (34 Stats., 85).
(See note to paragraph 1115.)
SUPPLEMENT. 1213
1117a. Any regulations heretofore or hereafter prescribed by the
Secretary of War in pursuance of the fourth and fifth sections of the
river and harbor Act of August eighteenth, eighteen hundred and
ninety- four, and any regulations hereafter prescribed in pursuance of
the aforesaid section four as amended by section eleven of this Act,
may be enforced as provided in section seventeen of the river and
harbor Act of March third, eighteen hundred and ninety-nine, the
provisions whereof are hereby made applicable to the said regulations.
Sec. 6, Act of June 13, 1902 (32 Stats., 374}.
(See paragraphs 1112, 1113, 1116, 1117, and 1113a.)
1117b. All railroad companies desiring the use of any railroad
bridge built in accordance with the provisions of this Act shall be
entitled to equal rights and privileges relative to the passage. of rail-
way trains or cars over the same and over the approaches thereto
upon payment of a reasonable compensation for such use ; and in case
of any disagreement between the parties in regard to the terms of
such use or the sums to be paid all matters at issue shall be deter-
mined by the Secretary of War upon hearing the allegations and
proofs submitted to him. Sec. 3, Act of March 23, 1906 (34 Stats.,
85).
1117c. Whenever Congress shall hereafter by law authorize the
construction of any bridge over or across any of the navigable waters
of the United States, and no time for the commencement and com-
pletion of such bridge is named in said Act, the authority thereby
granted shall cease and be null and void unless the actual construction
of the bridge authorized in such Act be commenced within one year
and completed within three years from the date of the passage of
such Act. Sec. 6, Act of March 23, 1906 (34 Stats., 86}.
1117d. The word " persons " as used in this Act shall be construed
to import both the singular and the plural, as the case demands, and
shall include municipalities, quasi municipal corporations, corpora-
tions, companies, and associations. Sec. 7, Act of March 23, 1906
(34 Stats., 86} .
1117e. The right to alter, amend, or repeal this Act is hereby ex-
pressly reserved as to any and all bridges which may be built in
accordance with the provisions of this Act, and the United States
shall incur no liability for the alteration, amendment, or repeal
thereof to the owner or owners or any other persons interested in any
bridge which shall have been constructed in accordance with its pro-
visions. Sec. 8, Act of March 23, 1906 (34 Stats., 86).
HARBOR LINES.
1119a. The Secretary of War * * is hereby, empowered, sub-
ject to the restrictions and under the conditions hereinafter men-
1214 MILITARY LAWS OF THE UNITED STATES.
tioned, to authorize the construction, extension, and maintenance of
any wharf, pier, dolphin, boom, weir, breakwater, sea wall, bulkhead,
jetty, or other structure on any of the lands belonging to the United
States which underlie the harbor areas and navigable streams and
bodies of water in or surrounding Porto Rico and the islands adjacent
thereto and the filling in and dredging of such lands. Sec. 1, Act of
June 11, 1906 (34 Stats., 234).
1119b. The word " person " as used in this Act shall be construed
to import either the singular or the plural, as the case demands, and
shall include individuals, municipalities, quasi-municipal corpora-
tions, corporations, companies, and associations. Sec. 2, Act of June
11,1906 (34 Stats., 234).
1119c. The powers granted in the foregoing sections shall be sub-
ject, however, to the following, restrictions:
(a) No authorization to any person to construct, extend, or
maintain any such structure shall continue for a longer period than
the period set forth in such authorization, and shall provide that
the Government of the United States or with the approval of the
Secretary of War the government of Porto Rico shall have the right
at any time after the expiration of thirty years from the date of
such authorization, and after three months' notice, to take any
such structure from the owner thereof upon paying the value of the
same at the time it shall be so taken, and the amount paid shall not
exceed the original cost of the same as may be fixed under paragraph
(f) hereof. In case the Government of the United States or the
government of Porto Rico, exercising the right of purchase as afore-
said should claim that the value of the structure when seized and
taken is less than its original cost, the extent of deterioration or
diminution from the original value shall be determined by a board
or commission of four members, two of whom shall be appointed
by the Secretary of War for the Government of the United States
or by the Governor of Porto Rico for the government of Porto Rico
as the case may be and two by the owner of such structure. If the
four members thus chosen and appointed shall not be able to agree,
they shall choose by mutual agreement a referee, whose decision
shall be final, but in no case shall the amount to be paid exceed the
original cost as fixed under the provisions of said paragraph (f).
If the four members thus chosen and appointed are unable by mutual
agreement to select a referee, then the Chief of Engineers of the
United States Army shall be the referee, and his decision shall be
final.
All authorizations granted by the Secretary of War for any such
construction, extension, or maintenance
(b) Shall be subject to alteration, amendment, or repeal by Con-
gress;
SUPPLEMENT. 1215
(c) Shall provide that the wharfage fees and charges for vessels,
for passengers, and for goods loaded or discharged on, from, at, or
over any such structure, and for approach and entry to any such
structure, shall be no greater than are just, reasonable, and fairly
remunerative, and for that purpose shall at all times be subject to
regulation and revision by the said Secretary of War; that such
fees and charges shall be the same for all persons, and all persons
shall have equal right to approach, enter, and use the said structure,
subject to such reasonable rules and regulations as the grantee
thereof may establish, all of which rules and regulations shall be
subject to revision by the Secretary of War ;
(d) That all necessary dredging in or in connection with the said
structure, or the use thereof, shall be made by the grantee of the
authorization ;
(e) That such authorization shall be null and void unless actual
construction shall be commenced within one year from the date of
such authorization by the Secretary of War, and completed within
three years from the date of such authorization, or within such
lesser periods as may be therein fixed : Provided, That the Secretary
of War may for due cause shown extend the time for the completion
of such construction for a reasonable period.
(f) That duly verified accounts of expenditure for the construc-
tion, extension, or improvement of such structure shall be exhibited
to, and filed with, the United States army engineer at the city of
San Juan, Porto Rico, who shall report to the Secretary of War
the entire cost of such structure, extension, or improvement to be
built under such authorization.
(g) That the said structure shall not be sublet, sold, transferred,
or assigned, nor shall the authorization therefor be granted, sold,
transferred, or assigned without the consent of the Secretary of War,
nor in any case to a person engaged, directly or indirectly, in the
same line of business, in the same harbor area, navigable stream,
or body of water, and that any grant, subletting, sale, transfer, or
assignment in violation hereof shall be null and void;
(h) That any and all vessels owned or chartered by the United
States Government shall in case of any emergency, or in time of
war, have prior right, free of charge, to the use of any such struc-
ture; and
(i) Shall contain such further restrictions as the Secretary of
War may see fit to impose therein. Sec. 3, Act of June 11, 1906 (34
Stats., 235}.
1119d, No such authorization by the Secretary of War shall be
granted to any person unless the applicant therefor shall first furnish
to the Secretary of War satisfactory proof either that he (or it) is
the owner or lessee of the approaches to the shore end of the proposed
1216 MILITARY LAWS OF THE UNITED STATES.
structure, with the right to use the same in connection therewith, or
that he (or it) is the owner of a franchise granting the right to use
said approaches in connection with such proposed structure. Every
application to the Secretary of War for any such authorization shall
be accompanied by plans and specifications for such structure, exten-
sion, or improvement, which said plans and specifications shall be
submitted to, and approved by, the Chief of Engineers of the United
States Army before the granting of any such authorization by the
Secretary of War, and such plans and specifications shall not be de-
viated from in any such structure, extension, or improvement without
the written consent, first obtained, of the said Chief of Engineers.
Sec. 4, Act of June 11, 1906 (34 Stats., 236).
1119e. Nothing herein contained shall be so construed as to affect
legal or equitable rights, if any, existing at the date of the approval
of this Act which were acquired by the government of Porto Rico or
any other party under any contract, lease or license, for the construc-
tion, extension, improvement, or maintenance of any such structure,
granted by the United States authorities prior to the approval of this
Act. Sec. 6, Act of June 11, 1906 (34 Stats., 236).
NIAGARA FALLS.
1150a. The diversion of water from Niagara River or its tributa-
ries, in the State of New York, is hereby prohibited, except with the
consent of the Secretary of War as hereinafter authorized in section
two of this Act: Provided, That this prohibition shall not be in-
terpreted as forbidding the diversion of the waters of the Great
Lakes or of Niagara River for sanitary or domestic purposes, or for
navigation, the amount of which may be fixed from time to time by
the Congress of the United States or by the Secretary of War of the
United States under its direction. Sec. 1, Act of June 29, 1906 (34
Stats., 626).
1150b. The Secretary of War is hereby authorized to grant permits
for the diversion of water in the United States from said Niagara
River or its tributaries for the creation of power to individuals, com-
panies, or corporations which are now actually producing power
from the waters of said river, or its tributaries, in the State of New
York, or from the Erie Canal; also permits for the transmission of
power from the Dominion of Canada into the United States, to com-
panies legally authorized therefor, both for diversion and transmis-
sion, as hereinafter stated, but permits for diversion shall be issued
only to the individuals, companies, or corporations as aforesaid, and
only to the amount now actually in use or contracted to be used in fac-
tories the buildings for which are now in process of construction, not
exceeding to any one individual, company or corporation as afore-
SUPPLEMENT. 1217
said a maximum amount of eight thousand six hundred cubic feet
per second, and not exceeding to all individuals, companies or cor-
porations as aforesaid an aggregate amount of fifteen thousand six
hundred cubic feet per second; but no revocable permits shall be
issued by the said Secretary under the provisions hereafter set forth
for the diversion of additional amounts of water from the said
river or its tributaries until the approximate amount for which per-
mits may be issued as above, to wit, fifteen thousand six hundred
cubic feet per second, shall for a period of not less than six months
have been diverted from tne waters of said river or its tributaries, in
the State of New York : Provided, That the said Secretary, subject to
the provisions of section five of this Act, under the limitations relat-
ing to time above set forth is hereby authorized to grant revocable
permits, from time to time, to such individuals, companies, or cor-
porations, or their assigns, for the diversion of additional amounts of
water from the said river or its tributaries to such amount, if any, as,
in conection with the amount diverted on the Canadian side, shall not
injure or interfere with the navigable capacity of said river, or its
integrity and proper volume*as a boundary stream, or the scenic gran-
deur of Niagara Falls ; and that the quantity of electrical power which
may by permits be allowed to be transmitted from the Dominion
of Canada into the United States, shall be one hundred and sixty
thousand horsepower : Provided further, That the said Secretary, sub-
ject to the provisions of section five of this Act, may issue revocable
permits for the transmission of additional electrical power so gen-
erated in Canada, but in no event shall the amount included in such
permits, together with the said one hundred and sixty thousand horse-
power and the amount generated and used in Canada, exceed three
hundred and fifty thousand horsepower: Provided always, That the
provisions herein permitting diversions and fixing the aggregate
horespower herein permitted to be transmitted into the United States,
as aforesaid, are intended as a limitation on the authority of the Sec-
retary of War, and shall in no wise be construed as a direction to said
Secretary to issue permits, and the Secretary of War shall make regu-
lations preventing or limiting the diversion of water and the admis-
sion of electrical power as herein stated; and the permits for the
transmission of electrical power issued by the Secretary of War may
specify the persons, companies, or corporations by whom the same
shall be transmitted, and the persons, companies, or corporations to
whom the same shall be delivered. Sec. 2, Act of June 29, 1906 (34
Stats., 626).
1150c. Any person, company, or corporation diverting water from
the said Niagara River or its tributaries, or transmitting electrical
power into the United States from Canada, except as herein stated, or
violating any of the provisions of this Act, shall be deemed guilty of
22924—08 77
1218 MILITARY LAWS OF THE UNITED STATES.
a misdemeanor, and on conviction thereof shall be punished by a fine
not exceeding two thousand five hundred dollars nor less than five
hundred dollars, or by imprisonment (in the case of a natural person)
not exceeding one year, or by both such punishments, in the discre-
tion of the court. And, further, the removal of any structures or
parts of structures erected in violation of this Act, or any construc-
tion incidental to or used for such diversion of water or transmission
of power as is herein prohibited, as well as any diversion of water or
transmission of power in violation hereof, may be enforced or en-
joined at the suit of the United States by any circuit court having
jurisdiction in any district in which the same may be located, and
proper proceedings to this end may be instituted under the direction
of the Attorney-General of the United States. Sec. 3, Act of June
29, 1906 (34 Stats., 627).
1150d. The provisions of this Act shall remain in force for three
years from and after date of its passage, at the expiration of which
time all permits granted hereunder by the Secretary of War shall ter-
minate unless sooner revoked, and the ^Secretary of War is hereby
authorized to revoke any or all permits granted by him by authority
of this Act, and nothing herein contained shall be held to confirm,
establish, or confer any rights heretofore claimed or exercised in the
diversion of water or the transmission of power. Sec. 5, Act of June
29, 1906 (34 Stats., 626).
CHAPTER XXIII.
THE ORDNANCE DEPARTMENT — THE BOARD or ORDNANCE AND
FORTIFICATION, ARMS, ARMORIES, AND ARSENALS.
ORGANIZATION.
1151a. The Ordnance Department shall consist of one chief of ord-
nance with the rank of brigadier-general ; six colonels, nine lieutenant-
colonels, nineteen majors, twenty-five captains, twenty-five first lieu-
tenants, and the enlisted men, including ordnance-sergeants, as now
authorized by law. Act of June 25, 1906 (34 Stats., 455).
(This paragraph amends paragraph 1151.)
DETAILS.
1155a. Hereafter details for service to the grade of first lieutenant
in the Ordnance Department under the provisions of the Act of Feb-
ruary second, nineteen hundred and one, may be made, from the Army
at large, from the grade of first or second lieutenant, and officers so
detailed shall, while so serving, receive the pay of first lieutenant:
SUPPLEMENT. 1219
Provided, That no officer shall be so detailed except upon such exam-
ination as may be prescribed by the Secretary of War. Act of March
2,1903 (32 Stats., 9^2}.
(This paragraph amends paragraph 1155.)
1155b. Details to the Ordnance Department under the provisions of
the Act of February second, nineteen hundred and one, may be made
from the Army at large from the grade in which the vacancy exists,
or from the grade below : Provided, That no officer shall be so detailed
except upon the recommendation of a board of ordnance officers, and
after at least one examination, which shall be open to competition:
And provided further, That officers so detailed in grades below that
of major shall not be again eligible for such detail until after they
shall have served for at least one year out of that department. Act
of June 25, 1906 (34 Stats., 455).
(This paragraph amends paragraphs 1155, 11550, and 1156.)
MISCELLANEOUS REQUIREMENTS.
1161a. The services of skilled draftsmen and such other services,
not clerical, as the Secretary of War may deem necessary, may be
employed in the office of the Chief of Ordnance to carry into effect
the various appropriations for the armament of fortifications, to be
paid from such appropriations, in addition to the amount specifically
appropriated for draftsmen in the Army Ordnance Bureau: Pro-
vided, That the entire expenditures for this purpose for .the fiscal
year ending June thirtieth, nineteen hundred and five, shall not
exceed forty thousand dollars, and that the Secretary of War shall
each year in the annual estimates report to Congress the number of
persons so employed and the amount paid to each. Act of March 18,
1904 (33 Stats., 115).
PURCHASES.
1169a. Hereafter purchases of ordnance and ordnance stores and
supplies and the procurement of services may be made by the Ord-
nance Department in open market, in the manner common among
business men, when the aggregate of the amount required does not
exceed two hundred dollars, but every such purchase exceeding one
hundred dollars shall be immediately reported to the Secretary of
War. Act of April 23, 1904 (33 Stats., 275) .
(This paragraph amends paragraph 1169.)
SALES OF SERVICEABLE ORDNANCE AND ORDNANCE STORES.
1178a. Hereafter moneys arising from deductions made from car-
riers on account of the loss of or damage to military stores in transit
shall be credited to the proper appropriation or funds out of which
1220 MILITAKY LAWS OP THE UNITED STATES.
such or similar stores shall be replaced and individual pieces of United
States armament which are not needed on account of historical value,
and can be advantageously replaced, may be sold at a price not less
than their cost price, when there exist for such sale sentimental rea-
sons adequate in the judgment of the Secretary of War or Secretary
of the Navy. Act of March 2, 1905 (33 Stats., 840).
(See paragraphs 1181a and 1640a.)
1181a. Hereafter all moneys arising from disposition authorized by
law and regulation of serviceable ordnance and ordnance stores shall
constitute one fund on the books of the Treasury Department, which
shall be available to replace ordnance and ordnance stores throughout
the fiscal year in which the disposition was effected and throughout
the following year. The Secretary of War is hereby authorized to
sell to American designers such serviceable ordnance and ordnance
stores as may be necessary in the development of designs which may
be used in the military service: Provided, That such ordnance and
ordnance stores can be spared for the purpose, and funds arising from
such sales shall be available to replace like ordnance and ordnance
stores. Act of April 23, 1904 (33 Stats., 276} .
AMMUNITION FOR MORNING AND EVENING GUN.
1184a. For firing the morning and evening gun at military posts
prescribed by General Orders, Numbered Seventy, Headquarters of
the Army, dated July twenty-third, eighteen hundred and sixty-
seven, and at National Home for Disabled Volunteer Soldiers and its
several branches, including National Soldiers' Home in Washington,
District of Columbia, and at Soldiers and Sailors' State Homes, in-
cluding material for cartridges, bags, reworking obsolete powder, and
so forth, thirteen thousand five hundred dollars. Act of April 23,
1904 (33 Stats., 275}.
(This paragraph amends paragraph 1184 by providing for "reworking obso-
lete powder.")
ARMS, ARMORIES, AND ARSENALS.
1192a. Hereafter all employees of the Ordnance Department whose
rate of compensation is annual shall be paid monthly at the rate of
one-twelfth of the annual rate, and of such monthly rate and of all
other monthly rates of compensation one-thirtieth shall be the daily
rate for computation of pay for fractional parts of a month ; and for
the purposes of this provision each and every month shall be held to
consist of thirty days, whether the actual number of days be greater
or less. Act of April 23, 1904 (33 Stats., 276) .
(See paragraph 635a.)
SUPPLEMENT. 1221
MISCELLANEOUS PROVISIONS.
1201a. For the purpose of furnisnmg a national trophy and medals
and other prizes to be provided and contested for annually, under
such regulations as may be prescribed by the Secretary of War, said
contest to be open to the Army, Navy, Marine Corps, and the National
Guard or organized militia of the several States, Territories, and of
the District of Columbia, and for the cost of the trophy, prizes, and
medals herein provided for, the sum of two thousand five hundred
dollars be, and the same is hereby, appropriated, out of any money in
the Treasury not otherwise appropriated, to be expended for the pur-
poses hereinbefore prescribed under the direction of the Secretary of
War. Act of April 28, 1904 ($3 Stats., 580) .
(See General Orders, 61, H. A., 1903, and General Orders, 53, War Depart-
ment, 1904.)
1201b. For the purpose of furnishing a national trophy and medals
and other prizes to be provided and contested for annually, under
such regulations as may be prescribed by the Secretary of War, said
contest to be open to the Army, Navy, Marine Corps, and the Na-
tional Guard or organized militia of the several States, Territories,
and of the District of Columbia, and for the cost of the trophy,
prizes, and medals herein provided for, and for the promotion of
rifle practice, the sum of four thousand dollars be, and the same is
hereby, appropriated, out of any money in the Treasury not other-
wise appropriated, to be expended for the purposes hereinbefore
prescribed under the direction of the Secretary of War. Act of
March 2, 1907 (34 Stats., 1175).
(This paragraph amends paragraph 1201a, by providing for the " promotion
of rifle practice.")
1201c, The Chief of Ordnance, in conducting manufacturing or
similar operations, is authorized to charge any indirect or general
expense for labor or material therefor against any of the appropria-
tions authorizing these operations in such manner as is most eco-
nomical and efficient, provided that the methods adopted shall show
that each of such appropriations bears its ratable share of the total
amount of these expenses. Act of March 2, 1907 (34 Stats., 1062).
THE BOARD OF ORDNANCE AND FORTIFICATIONS.
1215a. All material purchased under the foregoing provisions of
this Act shall be of American manufacture, except in cases when, in
the judgment of the Secretary of War, it is to the manifest interest
of the United States to make purchases in limited quantities abroad,
1222 MILITAKY LAWS OF THE UNITED STATES.
which material shall be admitted free of duty. Act of April 21,
1904 (33 Stats. ,237}.
( See paragraph 1542. Similar provisions were embodied in the " Act making
appropriation for fortifications and other works of defense, etc.," approved
June 6, 1902, and the Act making appropriation for the same purpose, approved
March 3, 1903.)
CHAPTER XXIV.
THE SIGNAL CORPS.
ORGANIZATION.
121 8a. There shall be added to the Signal Corps of the Army, as
now authorized by law, one lieutenant-colonel, two majors, four cap-
tains, and four first lieutenants. Act of March 8, 1903 (32 Stats., 932).
(This paragraph increases the number of officers provided for in paragraph
1218.)
1219a. That the President be, and is hereby, authorized to appoint,
by and with the advice and consent of the Senate, an officer of the Sig-
nal Corps as chief of the telegraph and cipher bureau of the Executive
Office, who shall have, while so serving, the rank, pay, and allowances
of a major. Act of March 2, 1903 (32 Stats.,
APPOINTMENTS, PROMOTIONS, DETAILS.
1222a. The vacancies thus created or caused shall be filled first by
the promotion of officers of the Signal Corps, according to seniority,
and thereafter by details from the line of the Army. Act of March
2,1903 (32 Stats., 932).
(See paragraph 1218a.)
ENLISTED MEN.
1224a. Hereafter second-class privates of the Signal Corps shall be
designated as privates, with the same pay and allowances as now al-
lowed by law to second-class privates. Fifty first-class sergeants may
be temporarily added to the Signal Corps for service in the Philippine
Islands and Alaska ; such additional force, or part thereof, to be con-
tinued only as long as in the opinion of the Secretary of War (or the
President) it may be necessary for the efficiency of the Army. Act
of June 30, 1902 (32 Stats., 509).
(This paragraph amends paragraph 1224.)
1224b. One hundred and thirty-two first-class sergeants, at five
hundred and forty dollars each.
SUPPLEMENT. 1223
One hundred and forty-four sergeants, at four hundred and eight
dollars each.
One hundred and fifty-six corporals, at two hundred and forty dol-
lars each.
Five hundred and fifty-two first-class privates, at two hundred and
four dollars each.
One hundred and sixty-eight privates, at one hundred and fifty-six
dollars each.
Twenty- four cooks, at two hundred and forty dollars each.
Thirty-six master signal electricians, at nine hundred dollars each.
The increase of enlisted men herein authorized shall take effect imme-
diately. Act of April 23, 1904 (33 Stats., 261).
(This paragraph increases the enlisted strength of the Signal Corps. See
paragraph 1224.)
SKILLED DRAFTSMEN, ETC.
1224c. The services of skilled draftsmen and such other services as
the Secretary of War may deem necessary may be employed only in
the Signal Office to carry into effect the various appropriations for
fortifications and other works of defense, to be paid from such ap-
propriations, in addition to the foregoing employees appropriated for
in the Signal Office : Provided, That the entire expenditures for this
purpose for the fiscal year ending June thirtieth, nineteen hundred
and eight, shall not exceed twenty- five thousand dollars, and that the
Secretary of War shall each year in the annual estimates report to
Congress the number of persons so employed, their duties, and the
amount paid .to each. Act of February 26, 1907 (34 Stats., 964).
DUTIES.
1230a, Hereafter the purchase of signal stores and equipment, or
the engagement of services not personal, by the Signal Corps of the
Army, may be made by the Signal Corps of the Army in open market
in the manner common among business men when the aggregate of
the amount required does not exceed two hundred dollars, but every
such purchase or employment shall be promptly reported to the Secre-
tary of War. Act of March 2, 1903 (32 Stats., 929) .
MILITARY TELEGRAPH LINES.
1233a. That of the receipts of the Washington-Alaska Military
Cable and Telegraph System that have been covered into the Treasury
of the United States, the sum of one hundred and ninety thousand
dollars be, and the same is hereby, made available until expended for
defraying the cost of such extensions and betterments of the system
as may be approved by the Secretary of War, the extent of such ex-
1224 MILITARY LAWS OF THE UNITED STATES.
tensions and the cost thereof to be reported to Congress by the Secre-
tary of War: Provided further, That hereafter detailed estimates
shall be submitted to Congress for any further extension of the cable
or telegraph lines in the district of Alaska. Act of March 2, 1907
(34 Stats., 1159).
CHAPTER XXV.
THE RECORD AND PENSION OFFICE.
RECORD AND PENSION OFFICE.
1239a. That the military rolls and records of the Indian wars or
any other wars prior to the civil war, now preserved in the Interior
or other Departments, be transferred to the War Department, to be
preserved in the Record and Pension Office of that Department, and
that they shall be properly indexed and arranged for use. Joint Res.
of April 28, 1904 (33 Stats.. 591).
CHAPTER XXVI.
CHAPLAINS.
1258a. The President may, from time to time, select from among
the chaplains of the Army any chaplains having not less than ten
years' service, in the grade of captain, who shall have been commended
as worthy of special distinction for exceptional efficiency by the
regimental or district commanders with whose commands they may
be serving as chaplains, approved through regular military channels,
and may, with the advice and consent of the Senate, promote such
regimental or artillery chaplains to be chaplains with the grade,
pay, and allowances of major; every such promotion being made
with a view to active service until the statutory age for the compul-
sory relinquishment thereof, except in cases of physical disability
incurred in the line of duty: Provided, That the total number in
active service so promoted shall not at any time exceed fifteen, and
that the remaining chaplains shall have the grade, pay, and allow-
ances of captain, mounted, after they shall have completed seven years
of service: And provided further, That all persons who may here-
after be appointed as chaplains shall have the grade, pay, and allow-
ances of first lieutenant, mounted, until they shall have completed
seven years of service.
SEC. 2. That all officers provided for in this Act shall have a uni-
form designation in official address as chaplains of their respective
regiments or of the Artillery Corps.
SUPPLEMENT. 1225
SEC. 3. That nothing in this Act shall be construed as depriving
any chaplain of his commission in the Army, or as interfering with
existing law pertaining to regimental and corps assignments or
transfers, and that nothing herein contained shall be held or con-
strued to increase the number of chaplains, as now authorized by law,
or to reduce the grade of any now serving.
SEC. 4. That all laws and parts of laws inconsistent with the pro-
visions of this Act be, and the same are hereby, repealed. Act of
April 21, 1904 (33 Stats., 226).
(This paragraph amends paragraph 1258.)
1258b. In addition to the number of chaplains now authorized by
law there shall hereafter be one for the Corps of Engineers. Act of
Jum 12, 1906 (34 Stats., 256).
(This paragraph amends paragraph 1258a.)
1258c. In addition to the chaplains now authorized for the Artil-
lery Corps the President is authorized to appoint, by and with the
advice and consent of the Senate, and subject to the laws governing
appointment of chaplains in the Army, one chaplain for each regi-
ment of field artillery and two for the coast artillery, with the rank,
pay, and allowances now authorized by law for chaplains in the
Army. Sec. 12, Act of January 25, 1907 (34 Stats., 864).
(This paragraph amends paragraph 1258a.)
CHAPTER XXVII.
COMMISSIONED OFFICERS.
APPOINTMENTS.
1270a, Vacancies in the grade of second lieutenant shall be filled as
now provided by law, except that no person shall be appointed from
civil life before he shall have reached the age of twenty-one years,
nor after he shall have reached the age of twenty-seven years, nor
until he shall have passed a satisfactory examination as to his moral,
physical, and educational qualifications. Sec. 5* Act of March 2,
1899 (30 Stats., 979).
LEAVES OF ABSENCE.
1287a. Officers appointed to the Regular Army from the volunteer
service, whose service has been continuous, shall, in the computation
of leaves of absence after their appointment in the Regular Army, be
1226 MILITAKY LAWS OF THE UNITED STATES.
entitled to the leave credits which accrued to them as volunteer offi-
cers where such leave credits were not availed of during their volun-
teer service. Act of June 30, 1902 (32 Stats., 508}. '
(See paragraphs 826-828.)
DETAILS FROM THE RETIRED LIST.
1290a. Section twelve hundred and twenty-five of the Revised Stat-
utes,1 concerning the detail of officers of the Army and Navy to edu-
cational institutions, is hereby, amended so as to permit the President
to detail under the provisions of that Act, and in addition to the de-
tail of the officers of the Army and Navy now authorized to be de-
tailed under the existing provisions of said Act, such retired officers
and noncommissioned officers of the Army and Navy of the United
States as in his judgment may be required for that purpose to act as
instructors in military drill and tactics in schools in the United
States and Territories where such instructions shall have been author-
ized by the educational authorities thereof, and where the services
of such instructors shall' have been applied for by said authorities.
Sec. 1, Act of April 21, 190 J^ (33 Stats., 225}.
(This paragraph amends paragraphs 1288-1290.)
1291a. No detail shall be made under this Act to. any school unless
it shall pay the cost of commutation of quarters of the retired officers
or noncommisisoned officers detailed thereto and the extra-duty pay
to which they may be entitled by law to receive for the performance
of special duty: Provided, That no detail shall be made under the
provisions of this Act unless the officers and noncommissioned officers
to be detailed are willing to accept such position : Provided further,
That they shall receive no compensation from the Government other
than their retired pay. Sec. 2, Act of April 21, 1904 (33 Stats., 225} .
(This paragraph takes the place of paragraph 1291.)
1 SEC. 1225, R. S. The President may, upon the application of any established
college or university within the United States, having capacity to educate, at
the same time, not less than one hundred and fifty male students, detail an
officer of the Army to act as president, superintendent, or professor thereof;
but the number of officers so detailed shall not exceed (twenty) (thirty) at
any time, and they shall be apportioned throughout the United States, as nearly
as may be practicable, according to population. Officers so detailed shall be
governed by general rules prescribed, from time to time, by the President. The
Secretary of War is authorized to issue at his discretion and under proper regu-
lations to be prescribed by him, out of any small arms or pieces of field artillery
belonging to the Government and which can be spared for that purpose, such
number of the same as may appear to be required for military instruction and
practice, by the students of any college or university under the provisions of
this section; and the Secretary shall require a bond in each case, in double the
value of the property, for the care and safe-keeping thereof, and for the return
of the same when required.
SUPPLEMENT. 1227
ISSUES OF ORDNANCE AND ORDNANCE STORES.
1292a. The Secretary of War is authorized to issue at his discre-
tion, and under proper regulations to be prescribed by him, out of
ordnance and ordnance stores belonging to the Government, and
which can be spared for that purpose, upon the approval of the gov-
ernors of the respective States and Territories, such number of the
same as may be required for military instruction and practice by such
school, and the Secretary shall require a bond in each case, for double
the value of the property, for the care and safe-keeping thereof and
for the return of the same when required. Sec. 3, Act of April 21,
1904 (33 Stats., 226}.
(This paragraph takes the place of paragraph 1292.)
1292b. The Secretary of War is hereby authorized to issue, at his
discretion and under proper regulations to be prescribed by him, with-
out cost of transportation to the United States, such obsolete ordnance
and ordnance stores as may be available to State and Territorial edu-
cational institutions and to State soldiers and sailors orphans' homes,
for purposes of drill and instruction.
And the Secretary of War shall require from such institutions or
homes a bond in each case in double the value of the property issued,
for the care and safe-keeping thereof and for the return of the same
to the United States when required : Provided, That the issues herein
provided for shall be made only to institutions upon recommendation
of the governors of States and Territories and shall not be made in
any case to any educational institution to which issues of such stores
are allowed to be made under provisions of existing law. Act of June
30, 1906 (34 Stats., 817).
(See paragraphs 1182, 1183, 1292, and 1292a.)
RETIREMENT OF OFFICERS.
1299a. Hereafter no officer holding a rank above that of colonel
shall be retired except for disability or on account of having reached
the age of sixty-four years until he shall have served at least one year
in such rank. Act of June 12, 1906 (34 Stats., 245} .
(This paragraph amends paragraph 1299.)
RETIREMENT OF OFFICERS.
13 03 a. Any officer of the Army below the grade of brigadier- general
who served with credit as an officer or as an enlisted man in the regu-
lar or volunteer forces during the civil war prior to April ninth,
eighteen hundred and sixty-five, otherwise than as a cadet, and whose
name is borne on the official register of the Army, and who has here-
1228 MILITARY LAWS OF THE UNITED STATES.
tofore been, or may hereafter be, retired on account of wounds or
disability incident to the service, or on account of age or after forty
years' service, may, in the discretion of the President, by and with
the advice and consent of the Senate, be placed on the retired list of
the Army with the rank and retired pay of one grade above that ac-
tually held by him at the time of retirement : Provided, That this Act
shall not apply to any officer who received an advance of grade since
the date of his retirement or who has been restored to the Army and
placed on the retired list by virtue of the provisions of a special Act
of Congress ; and the Secretary of War may assign retired officers of
the Army, with their consent, to active duty in recruiting, for service
in connection with the organized militia in the several States and
Territories upon the request of the governor thereof, as military at-
taches, upon courts-martial, courts of inquiry and boards, and to
staff duties not involving service with troops ; and such officers while
so assigned shall receive the full pay and allowances of their respec-
tive grades. Act of April 23, 1904 (33 Stats., 264} -
1303b. A colonel or lieutenant-colonel heretofore or hereafter as-
signed to active duty shall hereafter receive the same pay and allow-
ances as a retired major would receive under a like assignment. Act
of June 12, 1906 (34 Stats., 245).
1303c. Officers who served creditably in the regular or volunteer
forces during the civil war prior to April ninth, eighteen hundred
and sixty-five, and who now hold the rank of brigadier-general on
the active list of the Army, having previously held that rank for
three years or more, shall, when retired from active service, have the
rank and retired pay of major-general. Act of March 2, 1907 (34
Stats., 1163).
MISCELLANEOUS PROVISIONS.
1323a. In addition to the detail of retired officers now authorized
by law, it shall hereafter be lawful for the Secretary of War to detail,
whenever in his judgment the public interests require it, not exceed-
ing twenty retired officers for service in connection with the organized
militia in the States or Territories, upon the request of the governor
thereof, and such retired officers shall be entitled, while so employed,
to receive the full pay and allowances of their respective grades. Act
of March 2, 1903 (32 Stats., 932).
MISCELLANEOUS PROVISIONS RESPECTING COMMISSIONED OFFICERS.
1332a. Officers of the Army of the United States may be detailed
for service as chief and assistant chiefs, the said assistant chiefs not
to exceed in number four, of the Philippine constabulary, and that
during the continuance of such details the officer serving as chief shall
have the rank, pay, and allowances of brigadier-general, and the offi-
SUPPLEMENT. 1229
cers serving as assistant chiefs shall have the rank, pay, and allow-
ances of colonel : Provided, That the difference between the pay and
allowances of brigadier-general and colonel, as herein provided, and
the pay and allowances of the officers so detailed in the grades from
which they are detailed shall pe paid out of the Philippine treasury.
Sec. 1, Act of January 30, 1903 (32 Stats., 783}.
CHAPTER XXVIII.
BREVETS — MEDALS OF HONOR — CERTIFICATES OF MERIT — FOREIGN
DECORATIONS.
MEDALS OF HONOR.
1356a. For three thousand medals of honor to be prepared, with
suitable emblematic devices, upon the design of the medal of honor
heretofore issued, or upon an improved design, together with appro-
priate rosettes or other insignia to be worn in lieu of the medal, and
to be presented by direction of the President, and in the name of Con-
gress, to such officers, noncommissioned officers, and privates as have
most distinguished, or may hereafter most distinguish, themselves by
their gallantry in action, twelve thousand dollars : Provided, That the
Secretary of War be, and he is hereby, authorized and directed to use
so many of the medals and rosettes or other insignia provided for by
this Act as may be necessary to replace the medals that have been
issued under the joint resolution of Congress approved July twelfth,
eighteen hundred and sixty-two, and section six of the Act of Con-
gress approved March third, eighteen hundred and sixty-three: And
provided further, That whenever it shall appear from official records
in the War Department that any officer or enlisted man of the Army
so distinguished himself in action as to entitle him to the award of
the Congressional medal of honor under the provisions of the sixth
section of the Act of Congress approved March third, eighteen hun-
dred and sixty-three, entitled " An Act making appropriations for
the sundry civil expenses of the Government for the year ending
June thirtieth, eighteen hundred and sixty-four, and for the year
ending the thirtieth of June, eighteen hundred and sixty-three, and
for other purposes," the fact that the person who so distinguished
himself has since become separated from the military service, or that
the award of the medal to him was not specifically recommended or
applied for while he was in the said service, shall not be held to pre-
vent the award and presentation of the medal to such person under the
provisions of the law hereinbefore cited. Act of April 23, 190 4
(33 Stats., 27 ^}.
(See paragraphs 1350 aiid 1357.)
1230 MILITARY LAWS OF THE UNITED STATES.
135Gb. That in any case where the President of the United States
has heretofore, under any Act or resolution of Congress, caused any
medal to be made and presented to any officer or person in the United
States on account of distinguished or meritorious services, on a proper
showing made by such person to the satisfaction of the President that
such medal has been lost or destroyed through no fault of the benefi-
ciary, and that diligent search has been made therefor, the President
is hereby authorized to cause to be prepared and delivered to such
person a duplicate of such medal, the cost of which shall be paid out
of any money in the Treasury not otherwise appropriated. Joint
Res. of April 15, 1904 (33 Stats., 588).
(See paragraph 1357.)
1356c. The holders of medals of honor under the Act approved
July twelfth, eighteen hundred and sixty-two, and section six of the
Act approved March third, eighteen hundred and sixty-three, shall
not be required to surrender such medals in case such medals are
replaced, in pursuance of the provisions of the Act of Congress
approved April twenty -third, nineteen hundred and four; and that
wherever the holders of such medals of honor have surrendered
them, in order to receive the medals provided for by said Act ap-
proved April twenty-third, nineteen hundred and four, such medals
shall be returned to them : Provided, That no recipient of both medals
shall wear both medals at the same time. Joint Res., February 27,
1907 (34 Stats., 1422).
(This paragraph amends paragraph 1356a.)
CORPS BADGES AND INSIGNIA OF SOCIETIES.
1362a. The distinctive badge adopted by the Army and Navy Union
of the United States may be worn, in their own right, upon all public
occasions of ceremony by officers and enlisted men of the Army and
Navy of the United States who are members of said organization.
Joint Res., March 2, 1907 (34 Stats., 1^23).
1363a. The distinctive badges adopted by military societies of men
who served in the armies and navies of the United States during the
Chinese relief expedition of nineteen hundred may be worn upon all
occasions of ceremony by officers and men of the Army and Navy of
the United States who are members of said organization in their own
right. Joint Res., January 12, 1903 (32 Stats., 1229).
1363b. Whoever, in the District of Columbia, not being a member
of the Military Order of the Loyal Legion of the United States, of
the Grand Army of the Republic, of the Sons of Veterans, of the
Woman's Relief Corps, of the Union Veteran's Union, of the Union
Veteran Legion, of the United Spanish War Veterans, of the Na-
SUPPLEMENT.
1231
tional Society of the Daughters of the American Revolution, and not
entitled under the rules of the order to wear the same, willfully wears
or uses the insignia, distinctive ribbon, or badge of membership, ro-
sette, or button thereof, or who uses or wears the same to obtain aid
or assistance thereby, shall be punished by a fine of not more than
twenty dollars or by imprisonment for not more than thirty days, or
by both such fine and imprisonment. Act of March 15, 1906 (34
Stats., 62).
CHAPTER XXIX.
ENLISTED MEN.
RETIREMENT OF ENLISTED MEN.
1379a. When an enlisted man shall have served thirty years either
in the Army, Navy, or Marine Corps, or in all, he shall, upon making
application to the President, be placed upon the retired list, with
seventy-five per centum of the pay and allowances he may then be in
receipt of, and that said allowances shall be as follows: Nine dollars
and fifty cents per month in lieu of rations and clothing and six dol'-
lars and twenty- five cents per month in lieu of quarters, fuel, and
light: Provided, That in computing the necessary thirty years' time
all service in the Army, Navy, and Marine Corps shall be credited.
SEC. 2. That all Acts and jparts of Acts, so far as they conflict with
the provisions of this Act, are hereby repealed. Sees. 1 and 2, Act of
March 2, 1907 (34 Stats., 1217).
(This paragraph takes the place of paragraph 1379. See paragraphs 869a,
and 1381a.)
1381a. Hereafter in computing the length of service for retirement,
credit shall be given soldiers for double the time of their actual serv-
ice in China, Cuba, the Philippine Islands, the Island of Guam,
Alaska, and Panama ; but double credit shall not be given for service
hereafter rendered in Porto Rico or the Territory of Hawaii. Act of
April 23, 1904 (33 Stats., 264}.
(This paragraph takes the place of paragraph 1381. See paragraphs 869 and
869a.)
DUPLICATE CERTIFICATES OF DISCHARGE.
1388a. Whenever satisfactory proof shall be furnished to the War
Department that any officer or enlisted man who has been or shall
hereafter be honorably discharged from the military service of the
United States has lost his certificate of discharge, or the same has been
1232 MILITARY LAWS OF THE UNITED STATES.
destroyed without his privity or procurement, the Secretary of War
shall be authorized to furnish to such officer or enlisted man, or to the
widow of such officer or enlisted man, a certificate of such discharge,
to be indelibly marked, so that it may be known as a certificate in lieu
of a lost or destroyed discharge : Provided, That such certificate shall
not be accepted as a voucher for the payment of any claim against the
United States for pay, bounty, or other allowance, or as evidence in
any other case. Act of July 1, 1902 (32 Stats., 629} .
(This paragraph virtually takes the place of sec. 224 of R. S. ; paragraph
1388.)
APPREHENSION OF DESERTERS REWARDS.
1409a. For the apprehension, securing, and delivering of deserters,'
including escaped military prisoners, and the expenses incident to
their pursuit ; and no greater sum than fifty dollars for each deserter
or escaped military prisoner shall, in the discretion of the Secretary
of War, be paid to any civil officer or citizen for such services and
expenses. Act of April 23, 1904 (33 Stats., 269} .
(This paragraph takes the place of paragraph 1409.)
DECEASED SOLDIERS.
1415a. Hereafter, in the settlement of the accounts of deceased offi-
cers or enlisted men of the Army, where the amount due the decedent's
estate is less than five hundred dollars and no demand is presented by
a duly appointed legal representative of the estate, the accounting
officers may allow the amount found due to the decedent's widow or
legal heirs in the following order of precedence : First, to the widow ;
second, if decedent left no widow, or the widow be dead at time of
settlement, then to the children or their issue, per stirpes ; third, if no
widow or descendants, then to the father and mother in equal parts,
provided the father has not abandoned the support of his family, in
which case to the mother alone ; fourth, if either the father or mother
be dead then to the one surviving; fifth, if there be no widow, child,
father, or mother at the date of settlement, then to the brothers and
sisters and children of deceased brothers and sisters, per stirpes:
Provided, That this Act shall not be so construed as to prevent pay-
ment from the amount due the decedent's estate of funeral expenses,
provided a claim therefor is presented by the person or persons who
actually paid the same before settlement by the accounting officers.
Act of June 30, 1906 (34 Stats., 750).
EXPENSES OF TRANSPORTATION AND BURIAL.
1416a. To enable the Secretary of War, in his discretion, to cause to
be transported to their homes the remains of officers and soldiers who
SUPPLEMENT. 1233
die at military camps or who are killed in action or who die in the
field or hospital in Alaska and at places outside of the limits of the
United States, or who die while on voyage at sea, forty thousand
dollars. Act of April 28, 1904 (33 Stats., 496).
(This paragraph takes the place of paragraph 1416.)
1417a. [For] expenses of the interment of officers killed in action or
who die when on duty in the field, or at military posts or on the fron-
tiers, or when traveling under orders, and of noncommissioned
officers and soldiers ; and in all cases where such expenses would have
been lawful claims against the Government reimbursement may be
made of expenses heretofore or hereafter incurred by individuals of
burial and transportation of remains of officers, including acting
assistant surgeons, not to exceed the amount now allowed in the cases
of officers, and for the reimbursement in the cases of enlisted men not
exceeding the amount now allowed in their cases, may be paid out of
the proper funds appropriated by this Act, and the disbursing officers
shall be credited with such reimbursement heretofore made ; but here-
after no reimbursement shall be made of such expenses incurred prior
to the twenty-first day of April, eighteen hundred and ninety-eight.
Act of April 23, 1904 (33 Stats., 269).
(See paragraph 1417.)
141 8a. To enable the Secretary of War, in his discretion, to cause
to be transported to their homes the remains of civilian employees of
the Army who have died, or may hereafter die, while in the employ
of the War Department in Cuba, Porto Rico, Hawaii, China, Alaska,
and the Philippines, including the remains of any honorably dis-
charged soldiers who are entitled under the terms of their discharge
to return transportation on Goverment transport, and who die while
on said transport, five thousand dollars. Act of April 28, 1904
(33 Stats., 496).
(This paragraph takes the place of paragraph 1418.)
CHAPTER XXX.
THE TROOPS OF THE LINE.
CAVALRY.
1424a. Each cavalry band shall consist of one chief musician ; one
chief trumpeter ; one principal musician ; one drum major, who shall
have the rank, pay, and allowances of a first sergeant; four ser-
geants ; eight cor(porals ; one cook, and eleven privates. Sec. '2, act of
March 2, 1899 (30 Stats., 977).
(This paragraph takes the place of paragraph 1424, which is defective.)
22924—08 78
1234 MILITARY LAWS OF THE UNITED STATES.
THE ARTILLERY CORPS.
1443a. One hundred electrician sergeants, to be assigned for duty
at such places as the Secretary of War may direct, at four hundred
and eight dollars each, * * * : Provided, That there shall be
added to the Artillery Corps twenty-five master electricians, to be
enlisted by the Secretary of War, after such examination as he may
prescribe, who shall receive seventy-five dollars per month and the
allowance of an ordnance sergeant. Act of March 2, 1903 (32 Stats.,
930).
(This paragraph takes the place of paragraph 1443.)
1443b. The artillery of the United States Army shall consist of the
Chief of Artillery, the coast artillery, and the field artillery. The
coast artillery and the field artillery shall be organized as hereinafter
specified, and the artillery shall belong to the line of the Army : Pro-
vided, That on and after July first, nineteen hundred and eight, the
Chief of Artillery shall cease to exercise supervision over the field
artillery and shall thereafter be designated as the Chief of Coast
Artillery. Sec. 1, Act of January 25, 1907 (34 Stats., 861).
(This paragraph and the following paragraphs take the place of all previous
paragraphs referring to the organization of the artillery.)
1443c. On and after the approval of this Act the coast artillery and
the field artillery shall be permanently separated, the separation to be
effected as follows:
All officers in the present Artillery Corps shall remain on one list
as regards promotion until sufficient promotions shall have been made
as far as the present number of officers permit, to provide in each
grade, together with the officers remaining therein, the total number
of officers of the grade provided for in this Act for the coast and field
artillery combined. After such promotion they shall, in each grade,
be assigned by the President to the coast artillery or to the field
artillery, according to special aptitude and qualifications and agree-
ably to individual preference, so far as may be practicable and for the
good of the service, such assignments to be permanent ; and all officers
promoted or appointed in the artillery thereafter shall be commis-
sioned as officers of the coast artillery or the field artillery, as the case
may be, and shall be promoted by seniority in their own branch, sub-
ject to the provisions of the laws governing promotion in the Army at
large. Sec. 9, Act of January 25, 1907 (34 Stats., 863).
1443d. All vacancies created or caused by this Act which can be
filled by promotion of officers now in the Artillery Corps shall be
filled by promotion according to seniority, subject to examination as
now prescribed by law. Of the vacancies created or caused by this
Act which can not be filled by promotion of officers now in the Artil-
SUPPLEMENT. 1235
lery Corps, one-fifth in each branch shall be filled in each fiscal year
until the total number of officers herein provided for shall have been
attained. The vacancies remaining in the grade of second lieutenant
shall be filled by appointment in the following order: First, of gradu-
ates of the United States Military Academy ; second, of enlisted men
whose fitness for advancement shall have been determined by competi-
tive examination; third, of candidates from civil life; and all such
appointments shall be made in accordance with the provisions of
existing law. Sec. 10, Act of January 25,1907 (34 Stats., 863).
1443e. The regimental and battalion noncommissioned staff officers-
herein authorized for regiments of field artillery shall have the pay
and allowances of corresponding grades in the cavalry ; the battalion
quartermaster-sergeant shall have the pay and allowances of sergeant-
major, junior grade, of the Artillery Corps ; the chief mechanic the
pay and allowances of sergeant, and the mechanics of field artillery
the pay and allowances of artificers of field artillery ; engineer, sixty-
five dollars a month and allowances of ordnance-sergeant ; electrician-
sergeant, first class, forty-five dollars a month and allowances of ord-
nance-sergeant ; electrician-sergeant, second class, thirty-five dollars a
month and allowances of ordnance-sergeant; master gunner, the pay
and allowances of ordnance-sergeant ; fireman, thirty dollars a month
and allowances of ordnance-sergeant; and that the rates of pay of all
other enlisted men of the coast and the field artillery shall be as now
provided by law: Provided, That casemate electricians, observers,
first class, and plotters shall receive nine dollars a month in addition
to their pay ; that chief planters, chief loaders, observers, second class,
gun commanders, and gun pointers shall receive seven dollars a
month in addition to their pay, and that first-class gunners shall re-
ceive two dollars a month and second-class gunners one dollar a
month in addition to their pay: Provided further, That the number
of casemate electricians shall not exceed forty- four; that the number
of observers, first class, shall not exceed one hundred and seventy;
that the number of plotters shall not exceed one hundred and seventy ;
that the number of chief planters shall not exceed forty-four ; that the
number of chief loaders shall not exceed forty- four; that the number
of observers, second class, shall not exceed one hundred and seventy ;
that the number of gun commanders shall not exceed three hundred
and seventy-eight, and that the number of gam pointers shall not ex-
ceed three hundred and seventy-eight: And provided further, That
no enlisted man shall receive under this section more than one addi-
tion to his pay. Sec. 11, Act of January 25, 1907 (34 Stats., 863).
THE COAST ARTILLERY CORPS.
1443f. The coast artillery is the artillery charged with the care and
use of the fixed and movable elements of land and coast fortifications,
1236 MILITAKY LAWS OF THE UNITED STATES.
including the submarine mine and torpedo defenses. Sec. 3, Act of
January 25, 1907 (34 Stats., 861).
1443g. The coast artillery shall constitute a corps, and shall consist
of one Chief of Coast Artillery with the rank, pay, and allowances of
a brigadier-general, as provided in section one of this Act; fourteen
colonels; fourteen lieutenant-colonels; forty-two majors; two hundred
and ten captains ; two hundred and ten first lieutenants, and two hun-
dred and ten second lieutenants; and the captains and lieutenants
provided for in this section not required for duty with companies
shall be available for duty as staff officers of the various coast artillery
commands and for such other details as may be authorized by law and
regulations; twenty-one sergeants-major with the rank, pay, and al-
lowances of regimental sergeants-major of infantry; twenty-six
master electricians; sixty engineers; seventy- four electrician-ser-
geants, first class; seventy-four electrician-sergeants, second class;
forty-two sergeants-major with the rank, pay, and allowances of bat-
talion sergeants-major of infantry; forty-two master gunners; sixty
firemen ; one hundred and seventy companies, and fourteen bands, or-
ganized as now provided for by law for artillery corps bands. Sec. 5,
Act of January 25, 1907 (34 Stats., 861).
1443h. Each company of coast artillery shall consist of one 'captain,
one first lieutenant, one second lieutenant, one first sergeant, one quar-
termaster-sergeant, two cooks, two mechanics, two musicians, and such
number of sergeants, corporals, and privates as may be fixed by the
President in accordance with the requirements of the service to which
it may be assigned : Provided, That the total number of sergeants and
corporals in the coast artillery, so fixed, shall not exceed one thousand
three hundred and sixty and two thousand and forty, respectively,
and that the total enlisted strength of the coast artillery, as provided
under this Act, shall not exceed nineteen thousand one hundred and
forty-seven, exclusive of master electricians, electrician-sergeants,
first class, and electrician-sergeants, second class. Sec. 6, Act of Jan-
uary 25, 1907 (34 Stats., 862).
THE FIELD ARTILLERY.
14431. The field artillery is the artillery which accompanies an
army in the field, and includes light artillery, horse artillery, siege
artillery, and mountain artillery. Sec. 4, Act of January 25, 1907
(34 Stats., 861).
1443J. The field artillery shall consist of six regiments, each organ-
ized as follows: One colonel, one lieutenant-colonel, two majors,
eleven captains, thirteen first lieutenants, and thirteen second lieuten-
ants; two veterinarians, one sergeant-major, one quartermaster-ser-
geant, one commissary-sergeant, two battalion sergeants-major, two
SUPPLEMENT. 1237
battalion quartermaster-sergeants, two color- sergeants, one band, and
six batteries organized into two battalions of three batteries each.
Of the officers herein provided the captains and lieutenants not re-
quired for duty with batteries shall be available for detail as regi-
mental and battalion staff officers, and for such other details as may
be authorized by law and regulations. Battalion adjutants shall be
detailed from the captains, and battalion quartermasters and commis-
saries from lieutenants. Each field artillery band shall be organized
as provided by law for cavalry bands: Provided, That the President
in his discretion may increase by nine mounted orderlies the regi-
mental strength herein authorized. Sec. 7, Act of January 25, 1907
(34 Stats., 862).
1443k. Each battery of field artillery shall consist of one captain,
two first lieutenants, two second lieutenants, one first sergeant, one
quartermaster-sergeant, one stable sergeant, one chief mechanic, six
sergeants, twelve corporals, four mechanics, three cooks, two mu-
sicians, and one hundred and two privates, the commisioned officers
to be assigned from among those hereinbefore authorized for the regi-
ment : Provided, That the President in his discretion may increase the
number of sergeants in any battery of field artillery to eight, the
number of corporals to sixteen, the number of mechanics to seven,
the number of musicians to three, and the number of privates to one
hundred and forty-nine: Provided further, That nothing contained
in this Act shall increase the total number of enlisted men in the line
of the Army, together with the native scouts, as authorized by section
thirty-six of the Act of Congress approved February second, nine-
teen hundred and one, entitled "An Act to increase the efficiency of
the permanent military establishment of the United States."1 Sec. 8,
Act of January 25, 1907 (3 4 Stats.. 862}.
CHAPTER XXXI.
THE UNITED STATES MILITARY ACADEMY — THE ARMY WAR COLLEGE —
THE. SERVICE SCHOOLS.
THE MILITARY ACADEMY.
ORGANIZATION : ACADEMIC AND MILITARY STAFF.
1458a. For pay of one associate professor of modern languages, in
addition to pay as captain, five hundred dollars. Act of April 28,
190^ (33 Stats., U®}.
(The above appropriation act amends paragraph 1458, by the creation of an
additional office.)
1238 MILITAKY LAWS OF THE UNITED STATES.
1458b. For one civilian instructor of French, to be employed under
rules prescribed by the Secretary of War, two thousand dollars ;
For two civilian instructors in Spanish, at two thousand dollars per
year each, to be employed under rules prescribed by the Secretary of
War, four thousand dollars. Act of April £8,1904 (33 Stats.,
(The above appropriation act amends paragraph 1458 by the creation of two
additional offices.)
1458c. For pay of one professor of ordnance and science of gunnery
(lieutenant-colonel), in addition to pay as major: Provided, 'fhat the
position shall be filled by the detail of an officer of the Army, who,
while so serving, shall have the title and status of other professors,
* * * five hundred dollars. Act of March 2, 1907 (34 Stats.,
1063).
(The above paragraph amends paragraphs 1458 and 1471.)
THE ACADEMIC STAFF.
1471a. The professors and the associate professor of the United
States Military Academy shall have the actual rank in the United
States Army now assigned to them by assimilation in the regulations
of the Military Academy prescribed by the President of the United
States, and that they shall exercise command only in the academic
department of the United States Military Academy. Act of June 28,
1902 (32 Stats. ,409).
(See note to paragraph 1495.)
CORPS OF CADETS.
1479a. The number of cadets authorized to be appointed by the
President from the United States at large shall not at any one time
exceed forty. Act of June 28, 1902 (32 Stats., 410) .
(This paragraph amends paragraph 1479.)
1480a. Hereafter the actual and necessary traveling expenses of
candidates while proceeding from their homes to the Military
Academy for qualification as cadets shall, if admitted, be credited to
their accounts and paid after admission from the appropriation for
the transportation of the Army and its supplies. Act of June 28,
1902 (32 Stats., 409).
(This paragraph amends paragraph 1480.)
1480b. Cadets appointed to the Military Academy at West Point,
New York, for admission after the year nineteen hundred and seven,
may be admitted on the first day of March in place of the first day
of June. Act of March 2, 1907 (34 Stats., 1063).
SUPPLEMENT. 1239
PAY AND ALLOWANCES.
1485a. Hereafter the pay of cadets shall be fixed at five hundred
dollars per annum and one ration per day, or commutation therefor,
such commutation to be thirty cents per day, to be paid from the
appropriation for the subsistence of the Army. Act of June 28, 1902
(32 Stats., 409).
(This paragraph amends paragraph 1485.)
THE MILITARY ACADEMY BAND. •
1508a. The Military Academy band shall hereafter consist of one
teacher of music, who shall be the leader of the band, one enlisted
band sergeant and assistant leader, and of forty enlisted musicians.
The teacher of music shall receive the pay of a second lieutenant, not
mounted ; the enlisted band sergeant and assistant leader shall receive
six hundred dollars per year; and of the enlisted musicians of the
band, twelve shall each receive thirty-four dollars per month, twelve
shall each receive twenty-five dollars per month, and the remaining
sixteen shall each receive seventeen dollars per month, and each of the
aforesaid enlisted men shall also be entitled to the clothing, fuel, ra-
tions, and other allowances of musicians of cavalry; and the said
teacher of music, the band sergeant and assistant leader, and the en-
listed musicians of the band shall be entitled to the same benefits in re-
spect to pay, emoluments, and retirement arising from longevity, re-
enlistment, and length of service as are, or may hereafter -become, ap-
plicable to other officers or enlisted men of the Army. Act of March
3, 1905 (33 Stats., 853).
(This paragraph amends section 1111 of the Revised Statutes and takes the
place of paragraph 1508.)
GENERAL ARMY SERVICE MEN, QUARTERMASTER'S DEPARTMENT.
1510a. Hereafter no part of the moneys appropriated for use of the
Quartermaster's Department shall be used in payment of extra duty
pay for the Army service men in the Quartermaster's Department at
West Point. Act of March 2, 1907 (34 Stats., 1167) .
ARMY AVAR COLLEGE.
1514a. The Secretary of War is hereby authorized to expend the
sum of four hundred thousand dollars, or so much thereof as may be
necessary, from the unexpended balance of an emergency fund appro-
priated in the Act approved March third, eighteen hundred and
ninety-nine, for the erection of the necessary buildings for the Army
War College, established at Washington Barracks, District of Co-
lumbia, for the instruction of officers of the Army and militia of the
United States. Act of June 30, 1902 (32 Stats., 512).
(See paragraph 1514 and General Orders, 155, H. A. 1901.)
1240 MILITAKY LAWS OF THE UNITED STATES.
UNITED STATES ENGINEER SCHOOL.
1515a. The Secretary of War is hereby authorized to expend the
sum of five hundred thousand dollars, or so much thereof as may be
necessary, from the unexpected balance of the appropriation for
barracks and quarters for the fiscal year ending June thirtieth, nine-
teen hundred, which sum is hereby reappropriated for the construc-
tion of the necessary buildings for the Engineer School at Washing-
ton Barracks, District of Columbia, Act of. June 30, 1902, '(32 Stats.,
519}.
(See General Orders, 155, H. A. 1901.)
1515b. For equipment and maintenance of the United States Engi-
neer School at Washington Barracks, District of Columbia, includ-
ing purchase of instruments, implements, and materials, for the use
of the school and for instruction of engineer troops in their special
duties as sappers and miners ; for land and submarine mines, ponto-
niers, torpedo drill, and signaling ; for purchase and binding of pro-
fessional works of recent date treating of military and civil engineer-
ing and kindred scientific subjects, for the library of the United
States Engineer School. Act of June 30, 1902 (32 Stats., 519).
(This paragraph takes the place of paragraph 1515. See General Orders, 155,
H..A. 1901.)
UNITED STATES SERVICE SCHOOLS.
1519a. To provide means for the theoretical and practical instruc-
tion at the Artillery School, at Fort Monroe, Virginia ; the School of
Submarine Defense, at Fort Totten, New York; the General Service
and Staff College, at Fort Leavehworth, Kansas, and the School of
Application for Cavalry and Field Artillery, at Fort Riley, Kansas,
by the purchase of text-books, books of reference, scientific and pro-
fessional papers, the purchase of modern instruments and material
for theoretical and practical instruction, and for all other absolutely
necessary expenses, to be allotted in such proportions as may, in the
opinion of the Secretary of War, be for the best interest of the mili-
tary service, twenty-five thousand dollars. Act of April 23, 190 J,.
(33 Stats. ,259).
(See General Orders, 155, H. A. 1901.)
CHAPTER XXXII.
CONTRACTS AND PURCHASES.
MISCELLANEOUS REQUIREMENTS.
1543a. Hereafter the purchase of supplies and the procurement of
services for all branches of the Army service may be made in open
SUPPLEMENT. 1241
market, in the manner common among business men, when the aggre-
gate of the amount required does not exceed five hundred dollars ; but
every such purchase exceeding one hundred dollars shall be promptly
reported to the Secretary of War for approval, under such regulations
as he may prescribe. Act of June 12, 1906 (34 Stats., 258).
(This paragraph makes general to "all branches of the army service" the
authority to purchase supplies and procure services in open market, and in-
creases the amount that may be thus expended to "five hundred dollars.")
PENAL OFFENSES.
1566a. Every officer, clerk, agent, or employee of the United States,
and every person representing himself to be or assuming to act as
such officer, clerk, agent, or employee, who is guilty of extortion, under
color of his office, clerkship, agency, or employment, or under color
of his pretended or assumed office, clerkship, agency, or employment,
and every person who shall attempt any act which if performed would
make him guilty of such extortion, shall be punished by a fine of not
more than five hundred dollars or by imprisonment for not more than
one year, or by both such fine and imprisonment, except those officers
or agents of the United States otherwise differently and specially pro-
vided for in the subsequent sections of this chapter. Act of June 28,
1906 (34 Stats., 546).
(This paragraph amends section 5481 of the Revised Statutes and takes the
place of paragraph 1566. It has reference to Title 70, Chapter 6, R. S.)
THE EIGHT- HOUR LAW.
1573a. The provisions of the Act entitled "An Act relating to the
limitations of the hours of daily service of laborers and mechanics
employed upon the public, works of the United States and of the Dis-
trict of Columbia," approved August first, eighteen hundred and
ninety-two, shall not apply to alien laborers employed in the construc-
tion of the Isthmian Canal within the Canal Zone. Act of February
27,1906 (34 Stats., 33).
(This paragraph amends paragraph 1573.)
1573b. The provisions of an Act entitled "An Act relating to the
limitations of the hours of daily service of laborers and mechanics
employed upon the public works of the United States and of the Dis-
trict of Columbia," approved August first, eighteen hundred and
ninety-two, and of an Act entitled " An Act making appropriations
to supply urgent deficiencies in the appropriations for the fiscal year
ending June thirtieth, nineteen hundred and six, and for prior years,
and for other purposes," approved February twenty-seventh, nineteen
hundred and six, shall not apply to unskilled alien laborers and to the
foremen and superintendents of such laborers employed in the con-
1242 MILITARY LAWS OF THE UNITED STATES.
struction of the isthmian canal within the Canal Zone. Sec. 4, Act of
June 30, 1906 (34 Stats., 669).
(The above -paragraph amends paragraphs 1573 and 3573a.)
BONDS TO SECURE PAYMENT FOR LABOR AND MATERIALS.
1576a. Hereafter any person or persons entering into a formal con-
tract with the United States for the construction of any public build-
ing, or the prosecution and completion of any public work, or for
repairs upon any public building or public work, shall be required,
before commencing such work, to execute the usual penal bond, with
good and sufficient sureties, with the additional obligation that such
contractor or contractors shall promptly make payments to all per-
sons supplying him or them with labor and materials in the prosecu-
tion of the work provided for in such contract ; and any person,
company, or corporation who has furnished labor or materials used
in the construction or repair of any public building or public work,
and payment for which has not been made, shall have the right to
intervene and be made a party to any action instituted by the United
States on the bond of the contractor, and to have their rights and
claims adjudicated in such action and judgment rendered thereon,
subject, however, to the priority of the claim and judgment of the
United States. If the full amount of the liability of the surety on
said bond is insufficient to pay the full amount of said claims and
demands, then, after paying the full amount due the United States,
the remainder shall be distributed pro rata among said interveners.
If no suit should be brought by the United States within six months
from the completion and final settlement of said contract, then the
person or persons supplying the contractor with labor and materials
shall, upon application therefor, and furnishing affidavit to the De-
partment under the direction of which said work has been prosecuted
that labor or materials for the prosecution of such work has been sup-
plied by him or them, and payment for which has not been made, be
furnished with a certified copy of said contract and bond, upon which
he or they shall have a right of action, and shall be, and are hereby,
authorized to bring suit in the name of the United States in the cir-
cuit court of the United States in the district in which said contract
was to be performed and executed, irrespective of the amount in con-
troversy in such suit, and not elsewhere, for his or their use and
benefit, against said contractor and his sureties, and to prosecute the
same to final judgment and execution: Provided, That where suit is
instituted by any of such creditors on the bond of the contractor it
shall not be commenced until after the complete performance of said
contract and final settlement thereof, and shall be commenced within
one year after the performance and final settlement of said contract,
SUPPLEMENT. 1243
and not later: And provided further, That where suit is so instituted
by a creditor or by creditors, only one action shall be brought, and
any creditor may file his claim in such action and be made party
thereto within one year from the completion of the work under said
contract, and not later. If the recovery on the bond should be inade-
quate to pay the amounts found due to all of said creditors, judgment
shall be given to each creditor pro rata of the amount of the recovery.
The surety on said bond may pay into court, for distribution among
said claimants and creditors, the full amount of the sureties' liability,
to wit, the penalty named in the bond, less any amount which said
surety may have had to pay to the United States by reason of the
execution of said bond, and upon so doing the surety will be relieved
from further liability : Provided further, That in all suits instituted
under the provisions of this Act such personal notice of the pendency
of such suits, informing them of their right to intervene as the court
may order, shall be given to all known creditors, and in addition
thereto notice of publication in some newspaper of general circula-
tion, published in the State or town where the contract is being per-
formed, for at least three successive weeks, the last publication to be
at least three months before the time limited therefor. Act of Feb-
ruary 24, 1905 (33 Stats., 811}.
(This paragraph amends the act of March 13, 1894, 28 Stats., 278, and takes
the place of paragraph 1576.)
CHAPTER XXXIII.
THE PUBLIC LANDS — MILITARY RESERVATIONS — MILITARY POSTS.
HOMESTEADS.
1587a. The rights of honorably discharged Union soldiers and sail-
ors of the late civil and the Spanish war, as defined and described in
sections twenty-three hundred and four and twenty-three hundred
and five of the Revised Statutes,1 as amended by the Act of March
1 SEC. 2304, R. S. Every private soldier and officer who has served in the Army
of the United States during the recent rebellion, for ninety days, and who was
honorably discharged, and has remained loyal to the Government, including the
troops mustered into the service of the United States by virtue of the third
section of an act approved February thirteenth, eighteen hundred and sixty-two,
and every seaman, marine, and officer who has served in the Navy of the
United States, or in the Marine Corps, during the rebellion, for ninety days,
and who was honorably discharged, and has remained loyal to the Govern-
ment, shall, on compliance with the provisions of this chapter, as hereinafter
modified, be entitled to enter upon and receive patents for a quantity of public
lands not exceeding one hundred and sixty acres, or one-quarter section, to
be taken in compact form, according to legal subdivisions, including the alter-
nate reserved sections of public lands along the line of any railroad or other
public work, not otherwise reserved or appropriated, and other lands subject
to entry under the homestead laws of the United States; but such homestead
1244 MILITARY LAWS OF THE UNITED STATES.
first, nineteen hundred and one, shall not be abridged. Sec. 4-, Act
of April 27, 1904 (33 Stats., 322).
(See paragraphs 1586, 1587, and 1592.)
ACQUISITION OF LANDS BY THE UNITED STATES. (PHILIPPINE ISLANDS.)
1599a. All the property and rights which may have been acquired
in the Philippine Islands by the United States under the treaty of
peace with Spain, signed December tenth, eighteen hundred and
ninety-eight, except such land or other property as shall be desig-
nated by the President of the United States for military and other
reservations of the Government of the United States, are hereby
placed under the control of the government of said islands to be ad-
ministered for the benefit of the inhabitants thereof, except as pro-
vided is this Act. Sec. 12, Act of July 1, 1902 (32 Stats., 695) .
PUBLIC LANDS (PHILIPPINE ISLANDS).
1599b. Whenever it shall be made to appear to the secretary of any
province or the commander of any military department in the Philip-
pine Islands that any lands within the province are saline in character,
it shall be the duty of said provincial secretary or commander, under
the regulations of the Government of the Philippine Islands, to take
testimony in reference to such lands, to ascertain their true character,
and to report the same to the secretary of the interior for the Philip-
pine Islands; and if, upon such testimony, the secretary of the in-
terior shall find that such lands are saline and incapable of being pur-
chased under any of the laws relative to the public domain, then and
in such case said lands shall be offered for sale at the office of the
provincial secretary or such other officer as by the said government may
be described as mining recorder of the province or department in which
the same shall be situated, as the case may be, under such regulations
as may be prescribed by said Government and sold to the highest
bidder, for cash, at a price of not less than three dollars per hectare;
and in case such lands fail to sell when so offered, then the same shall
be subject to private sale at such office, for cash, at a price not less
than three dollars per hectare, in the same manner as other lands in
settler shall be allowed six months after locating his homestead, and filing his
declaratory statement, within which to make his entry and commence his
settlement and improvement.
SEC. 2305, R. S. The time which the homestead settler has served in the
Army, Navy, or Marine Corps shall be deducted from the time heretofore re-
quired to perfect title, or if discharged on account of wounds received or
disability incurred in the line of duty, then the term of enlistment shall be
deducted from the time heretofore required to perfect title, without reference to
the length of time he may have served ; but no patent shall issue to any homestead
settler who has not resided upon, improved, and cultivated his homestead for a
period of at least one year after he shall have commenced his improvements.
SUPPLEMENT. 1245
the said Islands are sold. All executive proclamations relating to the
sales of public saline lands shall be published in only two newspapers,
one printed in the English language and one in the Spanish language,
at Manila, which shall be designated by said Secretary of the interior.
Sec. 58, Act of July 1, 1902 (32 Stats., 705).
1599c. Whenever it shall be made to appear to the secretary of any
province or the commander of any military department in the Philip-
pine Islands that any lands within the province are saline in charac-
ter, it shall be the duty of said provincial secretary or commander,
under the regulations of the government of the Philippine Islands,
to take testimony in reference to such lands, to ascertain their true
character, and to report the same to the secretary of the interior for
the Philippine Islands; and if upon such testimony the secretary of
the interior shall find that such lands are saline and incapable of be-
ing purchased under any of the laws relative to the public domain,
then and in such case said lands shall be offered for sale at the office
of the provincial secretary, or such other officer as by the said govern-
ment may be described as mining recorder of the province or depart-
ment in which the same 'shall be situated, as the case may be, under
such regulations as may be prescribed by said government and sold to
the highest bidder for cash at a price of not less than six pesos per
hectare; and in case such lands fail to sell when so offered, then the
same shall be subject to private sale at such office, for cash, at a price
not less than six pesos per hectare, in the same manner as other lands
in the said islands are sold. All executive proclamations relating to
the sales of public saline lands shall be published in only two news-
papers, one printed in the English language and one in the. Spanish
language, at Manila, which shall be designated by said secretary of
the interior. Sec. 9, Act of February 6, 1905 (33 Stats., 697) .
(This paragraph amends section 58 of the act of July 1, 1902, and takes the
place of paragraph 1599&.)
ACKNOWLEDGMENT OF DEEDS.
1599d, Deeds and other instruments affecting land situate in the
District of Columbia or any Territory of the United States may be
acknowledged in the islands of Guam and Samoa or in the Canal
Zone before any notary public or judge, appointed therein by proper
authority, or by any officer therein who has ex officio the powers of a
notary public : Provided, That the certificate by such notary in
Guam, Samoa, or the Canal Zone, as the case may be, shall be accom-
panied by the certificate of the governor or acting governor of such
place to the effect that the notary taking said acknowledgment was in
fact the officer he purported to be; and any deeds or other instru-
ments affecting lands so situate, so acknowledged since the first day
1246 MILITARY LAWS OF THE UNITED STATES.
of January, nineteen hundred and five, and accompanied by such cer-
tificate shall have the same effect as such deeds or other instruments
hereafter so acknowledged and -certified. Act of June 28, 1906 (34
Stats., 552).
RUINS OR MONUMENTS.
1614a. Any person who shall appropriate, excavate, injure, or de-
stroy any historic or prehistoric ruin or monument, or any object of
antiquity, situated on lands owned or controlled by the Government
of the United States, without the permission of the Secretary of the
Department of the Government having jurisdiction over the lands
on which said antiquities are situated, shall, upon conviction, be
fined in a sum of not more than five hundred dollars or be imprisoned
for a period of not more than ninety days, or shall suffer both fine
and imprisonment, in the discretion of the court. Sec. 1, Act of June
8,1906 (34 Stats., 225) .
1614b. The President of the United States is hereby authorized, in
his discretion, to declare by public proclamation historic landmarks,
historic and prehistoric structures, and other objects of historic or
scientific interest that are situated upon the lands owned or con-
trolled by the Government of the United States to be national monu-
ments, and may reserve as a part thereof parcels of land, the limits
of which in all cases shall be confined to the smallest area compati-
ble with the proper care and management of the objects to be pro-
tected: Provided, That when such objects are situated upon a tract
covered by a bona fide unperfected claim or held in private owner-
ship, the tract, or so much thereof as may be necessary for the proper
care and management of the object, may be relinquished to the Gov-
ernment, and the Secretary of the Interior is hereby authorized to
accept the relinquishment of such tracts in behalf of the Government
of the United States. Sec. 2, Act of June 8, 1906 (34 Stats., 225) .
1614c. Permits for the examination of ruins, the excavation of
archaeological sites, and the gathering of objects of antiquity upon
the lands under their respective jurisdictions may be granted by the
Secretaries of the Interior, Agriculture, and War to institutions
which they may deem properly qualified to conduct such examina-
tion, excavation, or gathering, subject to such rules and regulations
as they may prescribe : Provided, That the examinations, excavations,
and gatherings are undertaken for the benefit of reputable museums,
universities, colleges, or other recognized scientific or educational
institutions, with a view to increasing the knowledge of such objects,
and that the gatherings shall be made for permanent preservation in
public museums. Sec. 3, Act of June-8, 1906 (34 Stats., 225) .
1614d. The Secretaries of the Departments aforesaid shall make
and publish from time to time uniform rules and regulations for the
SUPPLEMENT. 1247
purpose of carrying out the provisions of this Act. Sec. 4? Act of
June 8, 1906 (34 Stats., 22-1}.
MILITARY POSTS.
1621a. Hereafter no military post within the United States shall be
established without the express authority of Congress. Act of March
2,1905 (33 Stats., 836}.
HAWAII.
1625a. The Secretary of War is authorized to acquire leases in such
lands in Hawaii as have been set aside for purposes of a military post.
Act of June 28, 1902 (32 Stats., 464).
CHAPTEK XXXIV.
THE PUBLIC PROPERTY.
DEFICIENCY IN, AND DAMAGE TO, PUBLIC PROPERTY.
1640a. Hereafter moneys arising from deductions made from car-
riers on account of the loss of or damage to military stores in transit
shall be credited to the proper appropriation or funds out of which
such or similar stores shall be replaced and individual pieces of
United States armament which are not needed on account of histor-
ical value, and can be advantageously replaced, may be sold at a price
no£ less than their cost price, when there exist for such sale senti-
mental reasons adequate in the judgment of the Secretary of War or
Secretary of the Navy. Act of March 2, 1905 (33 Stats., 840) .
(See paragraphs 1178 and llSla.)
CHAPTEE XXXV.
THE MILITIA — THE MILITIA OF THE DISTRICT OF COLUMBIA — THE
TERRITORIAL MILITIA.
COMPOSITION AND ENROLLMENT.
1650a, Sections sixteen hundred and twenty-five to sixteen hundred
and sixty, both included, of title sixteen of the Revised Statutes, and
section two hundred and thirty-two therof, relating to the militia,
are hereby repealed. Sec. 25, Act of January 21, 1903 (32 Stats.,
780).
(This paragraph repeals paragraphs 133, 1651 to 1690, both inclusive, and
paragraphs 2020 to 2022, both inclusive.)
1248 MILITARY LAWS OF THE UNITED STATES.
1651a. The militia shall consist of every able-bodied male citizen of
the respective States, Territories, and the District of Columbia, and
every able-bodied male of foreign birth who has declared his intention
to become a citizen, who is more than eighteen and less than forty-five
years of age. Sec. 1, Act of January 21, 1903 (32 Stats., 775) .
(This and the following paragraph take the place of the paragraph repealed
by the act of January 21, 1903 (32 Stats., 775). See paragraphs 1650a and
1707.)
1651b. [The militia] shall be divided into two classes — the organ-
ized militia, to be known as the National Guard of the State, Terri-
tory, or. District of Columbia, or by such other designations as may
be given them by the laws of the respective States or Territories, and
the remainder to be known as the Reserve Militia. Sec. 1, Act of
January 21, 1903 (32 Stats., 775).
EXEMPTIONS.
1655a. The Vice-President of the United States, the officers, judi-
cial and executive, of the Government of the United States, the mem-
bers and officers of each House of Congress, persons in the military or
naval service of the United States, all custom-house officers, with
their clerks, postmasters and persons employed by the United States
in the transmission of the mail, ferrymen employed at any ferry on
a post road, artificers and workmen employed in the armories and ar-
senals of the United States, pilots, mariners actually employed in the
sea service of any citizen or merchant within the United States, and
all persons who are exempted by the laws of the respective States or
Territories shall be exempted from militia duty, without regard to
age. Sec. 2, Act of January 21, 1903 (32 Stats., 775).
(See paragraph 1708.)
1655b. Nothing in this Act shall be construed to require or compel
any member of any well-recognized religious sect or organization at
present organized and existing whose creed forbids its members to
participate in war in any form, and whose religious convictions are
against war or participation therein, in accordance with the creed of
said religious organization, to serve in the militia or any other armed
or volunteer force under the jurisdiction and authority of the United
States. Sec. 2, Act of January 21, 1903 (32 Stats., 775).
ORGANIZATION.
1656a. The regularly enlisted, organized, and uniformed active
militia in the several States and Territories and the District of Co-
lumbia who have heretofore participated or shall hereafter partici-
SUPPLEMENT. 1249
pate in the apportionment of the annual appropriation provided
by section sixteen hundred and sixty-one of the Revised Statutes of
the United States, as amended, whether known and designated as
National Guard, militia, or otherwise, shall constitute the organized
militia. The organization, armament, and discipline of the organ-
ized militia in the several States and Territories and in the District
of Columbia shall be the same as that which is now or may hereafter
be prescribed for the Regular and Volunteer Armies of the United
States, within five years from the date of the approval of this Act.
Sec. 3, Act of January 21, 1903 (32 Stats., 775}.
(See paragraph 1717.)
1657a. The President of the United States, in time of peace, may
by order fix«the minimum number of enlisted men in each company,
troop, battery, signal corps, engineer corps, and hospital corps. Sec.
3, Act of January 21, 1903 (32 Stats., 775}.
(See paragraph 1718.)
1661a. Any corps of artillery, cavalry and infantry existing in any
of the States at the passage of the Act of May eighth, seventeen hun-
dred and ninety-two, which, by the laws, customs or usages of the
said States have been in continuous existence since the passage of
said Act under its provisions and under the provisions of Section
two hundred and thirty-two and Sections sixteen hundred and
twenty-five to sixteen hundred and sixty, both inclusive, of Title six-
teen of the Revised Statutes of the United States relating to the Mi-
litia, shall be allowed to retain their accustomed privileges, subject,
nevertheless, to all other duties required by law in like manner as
the other Militia. Sec. 3, Act of January 21, 1903 (32 Stats., 775}.
INSTRUCTION AND DISCIPLINE.
1662a. The Secretary of War is hereby authorized to provide for
participation by any part of the organized militia of any State or
Territory on the request of the governor thereof in the encampment,
maneuvers, and field instruction of any part of the Regular Army at
o» near any military post or camp or lake or seacoast defenses of the
United States. In such case the organized militia so participating
shall receive the same pay, subsistence, and transportation as is pro-
vided by law for the officers and men of the Regular Army, to be paid
out of the appropriation for the pay, subsistence, and transportation
of the Army : Pro vided, That the command of such military post or
camp and of the officers and troops of the United States there sta-
tioned shall remain with the regular commander of the post without
regard to the rank of the commanding or other officers of the militia
22024 — 08 79
1250 MILITARY LAWS OF THE UNITED STATES.
temporarily so encamped within its limits or in its vicinity. Sec. 15,
Act of January 21, 1903 (32 Stats., 777).
1662b. No part of the sums appropriated for the support of the
Regular Army shall be used to pay any part of the expenses of the
organized militia of any State, Territory, or District of Columbia,
while engaged in joint encampment, maneuvers, and field instruction
of the Regular Army and militia as provided by section fifteen of the
Act of January twenty-first, nineteen hundred and three, entitled
" An Act to promote the efficiency of the militia, and for other pur-
poses." Act of April 23, 1904 (33 Stats., 265).
1662c. Each State or Territory furnished with material of war
under the provisions of this or former Acts of Congress shall, dur-
ing the year next preceding each annual allotment of funds, in accord-
ance with section sixteen hundred and sixty-one of the Revised Stat-
utes as amended, have required every company, troop, and battery
in its organized militia not excused by the governor of such State or
Territory to participate in practice marches or go into camp of in-
struction at least five consecutive days, and to assemble for drill and
instruction at company, battalion, or regimental armories or rendez-
vous or for target practice not less than twenty-four times, and shall
also have required during such year an inspection of each such com-
pany, troop, and battery to be made by an officer of such militia or
an officer of the Regular Army. Sec. 18, Act of January 21, 1903 (32
Stats., 778).
1662d. Upon the application of the governor of any State or Terri-
tory furnished with material of war under the provisions of this Act
or former laws of Congress, the Secretary of War may detail one or
more officers of the Army to attend any encampment of the organ-
ized militia, and to give such instruction and information to the offi-
cers and men assembled in such camp as may be requested by the gov-
ernor. Such officer or officers shall immediately make a report of
such encampment to the Secretary of War, who shall furnish a copy
thereof to the governor of the State or Territory. Sec. 19, Act of
January 21, 1903 (32 Stats., 778).
1662e. Upon application of the governor of any State or Territory
furnished with material of war under the provisions of this Act or
former laws of Congress, the Secretary of War may, in his discretion^
detail one or more officers of the Army to report to the governor of
such State or Territory for duty in connection with the organized
militia. All such assignments may be revoked at the request of the
governor of such State or Territory or at the pleasure of the Secretary
of War. Sec. 20, Act of January 21, 1903 (32 Stats., 779) .
1662f. Hereafter when any portion of the organized militia of any
State, Territory, or the District of Columbia participates in the en-
campment, maneuvers, and field instruction of any part of the Regular
SUPPLEMENT. 1251
Army, under the provisions of section fifteen of the Act of January
twenty-first, nineteen hundred and three, they may, after being duly
mustered by an officer of the Regular Army, be paid at any time after
such muster for the period from the date of leaving the home rendez-
vous to date of return thereto as determined in advance, both dates
inclusive, and such payment, if otherwise correct, shall pass to the
credit of the paymaster making the same. Act of June 12, 1906 (3%,
Stats., 249).
1663a. Whenever any officer of the organized militia shall, upon
recommendation of the governor of any State, Territory, or general
commanding the District of Columbia, and when authorized by the
President, attend and pursue a regular course of study at any military
school or college of the United States such officer shall receive from the
annual appropriation for the support of the Army the same travel
allowances, and quarters, or commutation of quarters, to which an
officer of the Regular Army would be entitled if attending such school
or college under orders from proper military authority, and shall also
receive commutation of subsistence at the rate of one dollar per day
while in actual attendance upon the course of instruction. Sec. 16,
Act of January 12, 1903 (32 Stats., 778) .
RETURNS.
1664a. There shall be appointed in each State, Territory and Dis-
trict of Columbia, an Adjutant-General, who shall perform such duties
as may be prescribed by the laws of such State, Territory, and District,
respectively, and make returns to the Secretary of War, at such times
and in such form as he shall from time to time prescribe, of the
strength of the organized militia, and also make such reports as may
from time to time be required by the Secretary of War. That the
Secretary of War shall, with his annual report of each year, transmit
to Congress an abstract of the returns and reports of the adjutants-
general of the States, Territories, and the District of Columbia, with
such observations thereon as he may deem necessary for the informa-
tion of Congress. Sec. 12, Act of January 21, 1903 (32 Stats., 776) .
(See paragraphs 1715 and 1716.)
ACTIVE SERVICE OF THE MILITIA.
1669a. Whenever the United States is invaded, or in danger of
invasion from any foreign nation, or of rebellion against the authority
of the Government of the United States, or the President is unable,
with the other forces at his command, to execute the laws of the Union
in any .part thereof, it shall be lawful for the President to call forth,
for a period not exceeding nine months, such number of the militia of
1252 MILITARY LAWS OF THE UNITED STATES.
the State or of the States or Territories or of the District of Columbia
as he may deem necessary to repel such invasion, suppress such rebel-
lion, or to enable him to execute such laws, and to issue his orders for
that purpose to such officers of the militia as he may think proper.
Sec. 4, Act of January 21, 1903 (32 Stats., 776).
(See paragraph 1711.)
1670a. When the militia of more than one State is called into the
actual service of the United States by the President he may, in his dis-
cretion, apportion them among such States or Territories or to the
District of Columbia according to representative population. Sec. 6,
Act of January 21, 1903 (32 Stats., 776).
1671a. The militia, when called into the actual service of the United
States, shall be subject to the same Rules and Articles of War as the
regular troops of the United States. Sec. 9, Act of January 21, 1903
(32 Stats., 776).
1672a. Courts-martial for the trial of officers or men of the militia,
when in the service of the United States, shall be composed of militia
officers only. Sec. 8, Act of January 21, 1903 (32 Stats., 776) .
1673a. Whenever the President calls forth the militia of any State
or Territory or of the District of Columbia to be employed in the
service of the United States, he may specify in his call the period for
which such service is required, not exceeding nine months, and the
militia so called shall continue to serve during the term so specified,
unless sooner discharged by order of the President. Sec. 5, Act of
January 21, 1903 (32 Stat., 776).
(See paragraph 1711.)
1674a. Every officer and enlisted man of the militia who shall be
called forth in the manner hereinbefore prescribed and shall be found
fit for military service shall be mustered or accepted into the United
States service by a duly authorized mustering officer of the United
States: Provided, however, That any officer or enlisted man of the
militia who shall refuse or neglect to present himself to such mus-
tering officer upon being called forth as herein prescribed shall be
subject to trial by court-martial, and shall be punished as such court-
martial may direct. Sec. 7, Act of January 21, 1903 (32 Stats., 776) .
(See paragraph 1711.)
PAY, KATIONS, EMOLUMENTS.
1681a. The militia, when called into the actual service of the
United States, shall, during their time of service, be entitled to the
same pay and allowances as are or may be provided by law for the
Regular Army. Sec. 10, Act of January 21, 1903 (32 Stats., 776).
SUPPLEMENT. 1253
1683a. When the militia is called into the actual service of the
United States, or any portion of the militia is accepted under the pro-
visions of this Act, their pay shall commence from the day of their
appearing at the place of company rendezvous. But this provision
shall not be construed to authorize any species of expenditure previ-
ous to arriving at such places of rendezvous which is not provided by
existing laws to be paid after their arrival at such places of rendez-
vous. Sec. 11, Act of January 21, 1903 (32 Stats., 776).
PENSIONS.
1687a. When any officer, noncommissioned officer, or private of the
militia is disabled by reason of wounds or disabilities received or
incurred in the service of the United States he shall be entitled to all
the benefits of the pension laws existing at the time of his service, and
in case such officer, noncommissioned officer, or private dies in the
service of the United States or in returning to his place of residence
after being mustered out of such service, or at any time, in conse-
quence of wounds or disabilities received in such service, his widow
and children, if any, shall be entitled to all the benefits of such pension
laws. Sec. 22, Act of January 21, 1903 (32 Stats., 779) .
ARMAMENT AND EQUIPMENT.
169 la. The sum of two million dollars is hereby annually appro-
priated, to be paid out of any money in the Treasury not otherwise
appropriated, for the purpose of providing arms, ordnance stores,
quartermaster stores, and camp equipage for issue to the militia, such
appropriation to remain available until expended. Sec. 1, Act of
June 22, 1906 (34 Stats., 449).
(This paragraph reenacts and amends section 1661 of the Revised Statutes,
as amended by the acts of February 12, 1887, and June 6, 1900. See paragraph
1691.)
169 lb. Said appropriation shall be apportioned among the several
States and Territories, under the direction of the Secretary of War,
according to the number of Senators and Representatives to which
each State respectively is entitled in the Congress of the United
States, and to the Territories and District of Columbia such propor-
tion and under such regulations as the President may prescribe : Pro-
vided, however, That no State shall be entitled to the benefits of the
appropriation apportioned to it unless the number of its regularly
enlisted, organized, and uniformed active militia shall be at least one
hundred men for each Senator and Representative to which such State
is entitled in the Congress of the United States. And the amount of
said appropriation which is thus determined not to be available shall
1254 MILITAKY LAWS OF THE UNITED STATES.
be covered back into the Treasury : Provided also, That the sums so
apportioned among the several States and Teritories and the District
of Columbia shall be available for the purpose named in section four-
teen of the Act of January twenty-first, nineteen hundred and three,
for the actual excess of expenses of travel in making the inspections
therein provided for over the allowances made for same by law ; for
the promotion of rifle practice, including the acquisition, construction,
maintenance, and equipment of shooting galleries and suitable target
ranges; for the hiring of horses and draft animals for the use of
mounted troops, batteries, and wagons; for forage for the same and
for such other incidental expenses in connection with encampments,
maneuvers, and field instruction provided for in sections fourteen and
fifteen of the said Act of January twenty-first, nineteen hundred and
three, as the Secretary of War may deem necessary. Sec. 2, Act of
June 22, 1906 (34 Stats., 449).
(This paragraph reenacts and amends section 2 of the act of February 12,
1887. See paragraph 1693.)
1692a. The annual appropriation made by section sixteen hundred
and sixty-one, Revised Statutes, as amended, shall be available for
the purpose of providing for issue to the organized militia any stores
and supplies or publications which are supplied to the Army by any
department. Any State, Territory, or the District of Columbia may,
with the approval of the Secretary of War, purchase for cash from
the War Department, for use of its militia, stores, supplies, material
of war, or military publications, such as are furnished to the Army,
in addition to those issued under the provisions of this Act, at the
price at which they are listed for issue to the Army, with the cost of
transportation added, and funds received from such sales shall be
credited to the appropriations to which they belong and shall not be
covered into the Treasury, but shall be available until expended to
replace therewith the supplies sold to the State and Territories and
to the District of Columbia in the manner herein provided. Sec. 17,
Act of January 21, 1903 (32 Stats., 778).
(See paragraph 277, 1691-1693.)
1692b. The sums hereby appropriated for the expenses of the or-
ganized militia for such joint encampment, maneuvers, and field in-
struction shall be disbursed as, and for that purpose shall constitute,
one fund ; and the Secretary of War shall hereafter forward to Con-
gress at its next session a detailed statement of the expenses of such
encampments and maneuvers. Act of April 23,. 1904 (33 Stats., 265).
(This paragraph relates to the joint encampment, etc., provided for by sec-
tions 15 and 21 of the act of January 21, 1903. See paragraphs 1662a and
1699a.)
SUPPLEMENT. 1255
1693a. Whenever it shall appear by the report of inspections, which
it shall be the duty of the Secretary of War to cause to be made at
least once in each year by officers detailed by him for that purpose,
that the organized militia of a State or Territory or of the District of
Columbia is sufficiently armed, uniformed, and equipped for active
duty in the field, the Secretary of War is authorized, on the requisi-
tion of the governor of such State or Territory, to pay to the quarter-
master-general thereof, or to such other officer of the militia of said
State as the said governor may designate and appoint for the pur-
pose, so much of its allotment out of the said annual appropriation
under section sixteen hundred and sixty-one of the Revised Statutes
as amended as shall be necessary for the payment, subsistence, and
transportation of such portion of said organized militia as shall en-
gage in actual field or camp service for instruction, and the officers
and enlisted men of such militia while so engaged shall be entitled
to the same pay, subsistence, and transportation or travel allowances
as officers and enlisted men of corresponding grades' of the Regular
Army are or may hereafter be entitled by law, and the officer so des-
ignated and appointed shall be regarded as a disbursing officer of the
United States, and shall render his accounts through the War De-
partment to the proper accounting officers of the Treasury for settle-
ment, and he shall be required to give good and sufficient bonds to
the United States, in such sums as the Secretary of War may direct,
faithfully to account for the safe-keeping and payment of the public
moneys so intrusted to him for disbursement. Sec. 14, Act of Jan-
uary 81, 1903 (32 Stats., 777).
(See paragraph 1693.)
1694a. The purchase or manufacture of arms, ordnance stores,
quartermaster stores, and camp equipage for the militia under the
provisions of this Act shall be made under the direction of the Secre-
tary of War, as such arms, ordnance and quartermaster stores, and
camp equipage are now manufactured or otherwise provided for the
use of the Regular Army, and they shall be receipted for and shall
remain the property of the United States, and be annually accounted
for by the governors of the States and Territories and by the com-
manding general of the National Guard of the District of Columbia,
for which purpose the Secretary of War shall prescribe and supply
the necessary blanks and make such regulations as he may deem nec-
essary to protect the interests of the United States. Sec. 3, Act of
June £0, 1906 (34 Stats., 450).
(This paragraph reenacts and amends section 3 of the act of February 12,
1887. See paragraph 1694.)
1696a. Whenever any property furnished to any State or Territory,
or the District of Columbia, as hereinbefore provided, has been
1256 MILITARY LAWS OF THE UNITED STATES.
lost or destroyed, or has become unserviceable or unsuitable from
use in service, or from any other cause, it shall be examined by a dis-
interested surveying officer of the organized militia, to be appointed
by the governor of the State or Territory, or the commanding gen-
eral 'of the National Guard of the District of Columbia, to, whom
the property has been issued, and his report shall be forwarded by
said governor or commanding general direct to the Secretary of War,
and if it shall appear to the Secretary of War from the record of sur-
vey that the property has been lost or destroyed through unavoidable
causes, he is hereby authorized to relieve the State from further ac-
countability therefor; if it shall appear that the loss or destruction
of property was due to carelessness or neglect or that its loss could
have been avoided by the exercise of reasonable care, the money value
thereof shall be charged against the allotment to the States under
section sixteen hundred and sixty-one of the Revised Statutes as
amended. If the articles so surveyed are found to be unserviceable
or unsuitable, the Secretary of War shall direct what disposition, by
sale or otherwise, shall be made of them, except unserviceable clothing
which shall be destroyed, and if sold the proceeds of such sale shall
be covered into the Treasury of the United States. Sec. 4, Act of
June m, 1906 (34 Stats., 450).
(This paragraph amends section 4 of the act of February 12, 1887, and takes
the place of paragraph 1696.)
1699a. The troops of the militia encamped at any military post or
camp of the United States may be furnished such amounts of ammu-
nition for instruction in firing and target practice as may be pre-
scribed by the Secretary of War, and such instruction in firing shall
be carried on under the direction of an officer selected for that pur-
pose by the proper militan^ commander. Sec. 21, Act of January 21,
1903 (32 Stats., 779).
1700a, The Secretary of War is hereby authorized to issue, on the
requisitions of the governors of the several States and Territories, or
of the commanding general of the militia of the District of Columbia,
such number of the United States standard service magazine arms,
with bayonets, bayonet scabbards, gun slings, belts, and such other
necessary accouterments and equipments as are required for the Army
of the United States, for arming all of the organized militia in said
States and Territories and District of Columbia, without charging the
cost or value thereof, or any which have been issued since December
first, nineteen hundred and one, or any expense connected therewith,
against the allotment to said State, Territory, or District of Columbia,
out of the annual appropriation provided by section sixteen hundred
and sixty-one of the Revised Statutes, as amended, or requiring pay-
SUPPLEMENT. 1257
ment therefor, and to exchange, without receiving any money credit
therefor, ammunition, or parts thereof, suitable to the new arms,
round for round, for corresponding ammunition suitable to the old
arms theretofore issued to said State, Territory, or District by the
United States: Provided, That said rifles and carbines and other
property shall be receipted for and shall remain the property of the
United States and be annually accounted for by the governors of the
States and Territories as now required by law, and that each State,
Territory, and District shall, on receipt of the new arms, turn in to
the Ordnance Department of the United States Army, without re-
ceiving any money credit therefor, and without expense for transpor-
tation, all United States rifles and carbines now in its possession.
To provide means to carry into effect the provisions of this section,
the necessary money to cover the cost of exchanging or issuing the
new arms, accouterments, equipments, and ammunition to be ex-
changed or issued hereunder is hereby appropriated out of any moneys
in the Treasury not otherwise appropriated. Sec, 13, Act of January
21,1903 (32 Stats., 777).
(See paragraphs 1694, 1739-1740.)
1700b. For the purpose of furnishing the necessary articles requisite
to fully arm, equip, and supply each regiment, battalion, squadron,
company, troop, battery, signal, engineer, and hospital corps and
medical department of the organized militia of the several States,
Territories, and the District of Columbia with the same armament and
equipment as are now prescribed for corresponding branches of the
line or staff in the Regular Army, without cost to said States, Terri-
tories, or the District of Columbia, but to remain the property of the
United States, and to be accounted for in the manner now prescribed
by law, the Secretary of War is hereby authorized, under such regu-
lations as he may prescribe, on the requisitions of the governors of the
several States and Territories, or the commanding general of the
militia of the District of Columbia, to issue the said armament and
equipment to the organized militia ; and the sum of two million dol-
lars is hereby appropriated and made immediately available until ex-
pended for the procurement and issue of the articles constituting the
same. Act of March, 2, 1903 (32 Stats., 942} .
1700c. For the purpose of procuring field-artillery material for the
organized militia of the several States, Territories, and the District
of Columbia, without cost to the said States, Territories, or the
District of Columbia, but to remain the property of the United States
and to be accounted for in the manner now prescribed by law, the
Secretary of War is hereby authorized, under such regulations as he
may prescribe, on the requisitions of the governors of the several
States and Territories or the commanding general of the militia of
1258 MILITARY LAWS OF THE UNITED STATES.
the District of Columbia, to issue said artillery material to the organ-
ized militia; and the sum of five hundred and eighty-five thousand
dollars is hereby appropriated and made immediately available, for
the procurement and issue of the articles constituting the same. Act
of April 23, 1904 (33 Stats., 275).
1700d. It shall be the duty of the Secretary of War, whenever a new
type of small arm shall have been adopted for the use of the Regular
Army, and when a sufficient quantity of such arms shall have been
manufactured to constitute, in his discretion, an adequate reserve for
the armament of any regular and volunteer forces that it may be
found necessary to raise in case of war, to cause the organized militia
of the United States to be furnished with small arms of the type so
adopted, with bayonets and the necessary accouterments and equip-
ments, including ammunition therefor: Provided, That such issues
shall be made in the manner provided" in section thirteen of the Act
approved January twenty-first, nineteen hundred and three, entitled
"An Act to promote the efficiency of the militia, and for other pur-
poses." Act of March 2, 1907 (34 Stats., 1174).
(See paragraph 1700a.)
1700e. The Secretary of War is hereby authorized to sell, at the
prices at which they are listed for the Army, upon the request of the
governors of the several States and Territories, such magazine rifles
belonging to the United States as are not necessary for the equip-
ment of the Army and the organized militia, for the use of rifle clubs
formed under regulations prepared by the national board for the
promotion of rifle practice and approved by the Secretary of War.
Sec. 1, Act of March 3, 1905 (33 Stats., 986).
(See paragraphs 1692a and 1692c.)
1700f . The Secretary of War is hereby authorized in his discretion
to sell to the several States and Territories, as prescribed in section
seventeen of the Act approved January twenty-first, nineteen hun-
dred and three, for the use of said clubs, ammunition, ordnance
stores, and equipments of the Government standard at tKe prices at
which they are listed for the Army. The practice of the rifle clubs
herein provided shall be carried on in conformity to regulations pre-
scribed by the national board for the promotion of rifle practice,
approved by the Secretary of War, and the results thereof shall be
filed in the office of the Military Secretary of the Army. Sec. 2, Act of
March 3, 1905 (33 Stats., 987).
1705a. Section two of the Act approved May nineteenth, eighteen
hundred and eighty-two, authorizing the Secretary of War to issue,
on the requisition of the governor of a State bordering on the sea or
SUPPLEMENT. 1259
Gulf coast, and having a permanent camping ground for the encamp-
ment of the militia not less than six days annually, two heavy guns
and four mortars, with carriages and platforms, for their instruction,
and for the construction of a suitable battery for the cannon so issued,
and appropriating five thousand dollars for each State to carry out
the above-mentioned objects, is hereby repealed: Provided, That
this repeal shall not affect the existing law regarding the disposition
of the cannon and other stores already issued. Act of March 2,
1907 (3 1^ Stats., 1060).
(This paragraph repeals paragraph 1705.)
THE MILITIA OF THE DISTRICT OF COLUMBIA.
ARMS, UNIFORMS, AND EQUIPMENTS.
1742a. All moneys collected on account of deductions made from
the pay of any officer or enlisted man of the National Guard of the
District of Columbia on account of Government property lost or
destroyed by such individual shall be repaid into the United States
Treasury to the credit of the officer of the militia of the District of
Columbia who is accountable to the United States Government for
such property lost or destroyed. Act of April 27, 1904 (33 Stats.,
389).
1750a. All moneys collected on account of deductions made from
the pay of any officer or enlisted man of the National Guard of the
District of Columbia for or on account of any violation of the regu-
lations governing said National Guard shall be held by the com-
manding general of the militia of the District of Columbia, who is
authorized to expend such moneys so collected for necessary clerical
and general incidental expenses of the service, including books, or for
the pay of troops, other than Government employees; and for all
moneys so collected and expended the commanding general shall
make an accounting in like manner as for the appropriation disbursed
for pay of troops. Act of April 27, 1904 (33 Stats., 389) .
(This paragraph amends paragraph 1750.)
EXPENSES AND ALLOWANCES, DISTRICT OF COLUMBIA.
1770a. For the following, to be expended under the authority of
the commanding general, who is hereby authorized and empowered to
make necessary contracts and leases, and to be accounted for in like
manner as the appropriations disbursed for pay of troops, namely:
For rent, fuel, light, heat, care, and repair of armories, practice
ships, boats, machinery, and dock, dredging alongside of dock, and
for telephone service, eighteen thousand dollars.
1260 MILITARY LAWS OF THE UNITED STATES.
For lockers, furniture, and gymnastic aparatus for armories, four
hundred dollars.
For printing and stationery, six hundred and fifty dollars.
For cleaning and repairing uniforms, arms, and equipments, and
contingent expenses, one thousand two hundred and fifty dollars.
For custodian in charge of United States property and storerooms,
nine hundred dollars.
For clerk, office of the Adjutant-General, seven hundred and twenty
dollars.
For expenses of drills and parades, one thousand seven hundred
dollars.
For expenses of rifle practice and matches, three thousand six hun-
dred dollars.
For expenses of camps, instruction, practice marches, and practice
cruises, including fuel for cruising purposes, fifteen thousand two
hundred dollars.
For pay of troops, other than Government employees, to be dis-
bursed under the direction of the commanding-general, seventeen
thousand six hundred dollars. Act of April 27, 1904 (33 Stats., 389) .
(See paragraphs 1766, 1769-1770.)
NAVAL BATTALION, DISTRICT OF COLUMBIA.
1781a. In addition to the companies of volunteer militia now au-
thorized in the District of Columbia there may be organized not more
than four companies of naval militia, which shall constitute a bat-
talion to be known as the naval battalion of the National Guard of
the District of Columbia.
SEC. 2. That the officers of the naval battalion shall consist of one
commander, and a staif to consist of one executive officer with the
rank of lieutenant-commander, one navigating officer with the rank
of lieutenant, one signal, ordnance, and equipment officer with the
rank of lieutenant, one chief engineer, one paymaster, and one sur-
geon, each with the relative rank of lieutenant. .
SEC. 3. That each company shall consist of one lieutenant, one lieu-
tenant, junior grade, two ensigns, and not less than sixty nor more
than one hundred petty officers and enlisted men.
SEC. 4. That in all matters not otherwise specially provided for,
the provisions of law which provide for the organization of the
militia of the District of Columbia shall apply to the naval battalion.
SEC. 5. That general routine of duty, discipline, and exercises of
the naval battalion, and parts thereof, shall conform with the laws,
customs, and usages of the Navy, as far as the same apply, and where
they do not apply then such routine of duty, discipline, and exercises
SUPPLEMENT. 1261
shall conform to the laws governing the volunteer forces of the Dis-
trict of Columbia. Sees. 1 to o, Act of May 11, 1898 (30 Stats., 404.)
CHAPTER XXXVI.
MILITARY TRIBUNALS.
ARREST AND CONFINEMENT.
1788a. For a donation of five dollars to each dishonorably dis-
charged prisoner upon his release from confinement, under court-
martial sentence, involving dishonorable discharge. * * * Act
of April 23, 1904 (33 Stats., 269).
(This paragraph is a reeuactraent of similar provisions contained in the an-
nual appropriation acts for the support of the Army.)
1788b. For a suit of citizen's outer clothing, to cost not exceeding
ten dollars, to be issued upon release from confinement to each pris-
oner who has been confined under a court-martial sentence involving
dishonorable discharge. * * * Act of April 23, 1904 (33 Stats.,
721).
(This paragraph is a reenactment of similar provisions contained in the an-
nual appropriation acts for the support of the Army.)
1788c. Transportation of the Army, including * * * the trans-
portation of persons on their discharge from the United States mili-
tary prison to their homes (or elsewhere as they may elect), provided
the cost in each case shall not be greater than to the place of last en-
listment, * * * dollars. Act of March 2, 1907 (34 Stats., 1169).
PRISONS.
1788d. Hereafter any military prison that the Secretary of War
may designate for the confinement of general prisoners for whom
there is no room at the United States Military Prison at Fort Leaven-
worth, Kansas, or whom it is impracticable to send there, shall be re-
garded as a branch of the said United States Military Prison and
equally with it shall be subject to the laws relating thereto, including
chapter six, title fourteen, of the Revised Statutes. Act of March 2,
1907 (34 Stats., 1169).
RULES OF EVIDENCE.
1815a. The competency of a witness to testify in any civil action,
suit, or proceeding in the courts of the United States shall be deter-
1262 MILITARY LAWS OF THE UNITED STATES.
mined by the laws of the State or Territory in which the court is
held. Act of June 29, 1906 (34 Stats., 618) .
(This paragraph amends section 858 of the Revised Statutes, and paragraph
1815.)
UNITED STATES PRISONERS I GOOD CONDUCT ALLOWANCE.
1837a. Each prisoner who has been or shall hereafter be convicted
of any offense against the laws of the United States, and is confined,
in execution of the judgment or sentence upon any such conviction,
in any United States penitentiary or jail, or in any penitentiary,
prison, or jail of any State or'Territory, for a definite term, other than
for life, whose record of conduct shows that he has faithfully observed
all the rules and has not been subjected to punishment, shall be enti-
tled to a deduction from the term of his sentence to be estimated as
follows, commencing on the first day of his arrival at the penitentiary,
prison, or jail : Upon a sentence of not less than six months nor more
than one year, five days for each month ; upon a sentence of more than
one year and less than three years, six days for each month ; upon a
sentence of not less than three years and less than five years, seven
days for each month ; upon a sentence of not less than five years and
less than ten years, eight days for each month; upon a sentence of
ten years or more, ten days for each month. When a prisoner has two
or more sentences, the aggregate of his several sentences shall be the
basis upon which his deduction shall be estimated. Sec. 1, Act of
June 21, 1902 (32 Stats., 397).
1837b. In the case of convicts in any United States penitentiary,
the Attorney-General shall have the power to restore to any such
convict who has heretofore or m&y hereafter forfeit any good time
by violating any existing law or prison regulation such portion of
lost good time as may be proper, in his judgment, upon recommen-
dations and evidence submitted to him by the warden in charge. Res-
toration, in the case of United States convicts confined in State and
Territorial institutions, shall be regulated in accordance with the
rules governing such institutions, respectively. Sec. 2, Act of June
21,1902 (32 Stats., 397).
1837c. This Act shall take effect and be in force from and after
thirty days from the date of its approval, and shall apply only to sen-
tences imposed by courts subsequent to the time that this Act takes
effect, as hereinbefore provided. Prisoners serving under any sentence
imposed prior to such time shall be entitled and receive the commuta-
tion heretofore allowed under existing laws. Such existing laws are
hereby repealed as to all sentences imposed subsequent to the time
when this Act takes effect. Sec. 3, Act of June 21, 1906 (32 Stats.,
SUPPLEMENT. 1263
CHAPTER XXXVII.
CITIZENSHIP AND NATURALIZATION.
CITIZENSHIP.
1871a. All children born outside the limits of the United States
who are citizens thereof in accordance with the provisions of section
nineteen hundred and ninety-three of the Revised Statutes of the
United States and who continue to reside outside the United States
shall, in order to receive the protection of this Government, be re-
quired upon reaching the age of eighteen years to record at an Ameri-
can consulate their intention -to become residents and remain citizens
of the United States and shall be further required to take the oath of
allegiance to the United States upon attaining their majority. Sec.
6, Act of March 2, 1907 (34 Stats., 1229}.
(This paragraph takes the place of paragraph 1871.)
1872a. Any American woman who marries a foreigner shall take
the nationality of her husband. At the termination of the martial
relation she may resume her American citizenship, if abroad, by
registering as an American citizen within one year with a consul of
the United States, or by returning tp reside in the United States, or,
if residing in the United States at the termination of the marital rela-
tion, by continuing to reside therein. Sec. 3, Act of March 2, 1907
(34 Stats., 1228).
1877a. Any American citizen shall be deemed to have expatriated
himself when he has been naturalized in any foreign state in con-
formity with its laws, or when he has taken an oath of allegiance to
any foreign state.
When any naturalized 'citizen shall have resided for two years in
the foreign state from which he came, or for five years in any other
foreign state it shall be presumed that he has ceased to be an Ameri-
can citizen, and the place of his general abode shall be deemed his
place of residence during said years: Provided, however, That such
presumption may be overcome on the presentation of satisfactory evi-
dence to a diplomatic or consular officer of the United States, under
such rules and regulations as the Department of State may prescribe :
And provided also', That no American citizen shall be allowed to ex-
patriate himself when this country is at war. Sec. 2, Act of March
2,1907 (34 Stats., 1228).
(See paragraph 1877.)
1264 MILITARY LAWS OF THE UNITED STATES.
1879a. The Secretary of State shall be authorized, in his discretion,
to issue passports to persons not citizens of the United States as fol-
lows: Where any person has made a declaration of intention to
become such a citizen as provided by law and has resided in the
United States for three years a passport may be issued to him enti-
tling him to the protection of the Government in any foreign coun-
try: Provided, That such passport shall not be valid for more than
six months and shall not be renewed^ and that such passport shall not
entitle the holder to the protection of this Government in the coun-
try of which he was a citizen prior to making such declaration of
intention. Sec. 1, Act of March 2, 1907 (34 Stats., 1228).
(This paragraph amends section 4076 of the Revised Statutes.)
NATURALIZATION.
1880a. Exclusive jurisdiction to naturalize aliens as citizens of the
United States is hereby conferred upon the following specified courts :
United States circuit and district courts now existing, or which
may hereafter be established by Congress in any State, United States
district courts for the Territories of Arizona, New Mexico, Oklahoma,
Hawaii, and Alaska, the supreme court of the District of Columbia,
and the United States courts for the Indian Territory ; also all courts
of record in any State or Territory now existing, or which may here-
after be created, having a seal, a clerk, and jurisdiction in actions at
law or equity, or law and equity, in which the amount in controversy
is unlimited.
That the naturalization jurisdiction of all courts herein specified,
State, Territorial, and Federal, shall extend only to aliens resident
within the respective judicial districts of such courts.
The courts herein specified shall, upon the requisition of the clerks
of such courts, be furnished from time to time by the Bureau of Immi-
gration and Naturalization with such blank forms as may be required
in the naturalization of aliens, and all certificates of naturalization
shall be consecutively numbered and printed on safety paper fur-
nished by said Bureau. Sec. 3, Act of June 29, 1906 (34 Stats., 596).
(This and the following paragraph — 1880b — take the place of paragraphs
1880, 1884, and 1885, which are repealed by section 26 of the act above cited. )
1880b. An alien may be admitted to become a citizen of the United
States in the following manner and not otherwise :
First. He shall declare on oath before the clerk of any court author-
ized by this Act to naturalize aliens, or his authorized deputy, in the
district in which such alien resides, two years at least prior to his ad-
mission, and after he has reached the age of eighteen years, that it is
bona fide his intention to become a citizen of the United States, and to
SUPPLEMENT. 1265
renounce forever all allegiance and fidelity to any foreign prince, po-
tentate, state, or sovereignty, and particularly, by name, to the prince,
potentate, state, or sovereignty of which the alien may be at the time
a citizen or subject. And such declaration shall set forth the name,
age, occupation, personal description, place of birth, last foreign resi-
dence and allegiance, the date of arrival, the name of the vessel, if any,
in which he came to the United States, and the present place of resi-
dence in the United States of said alien : Provided, however, That no
alien who, in conformity with the law in force at the date of his decla-
ration, has declared his intention to become a citizen of the United
States shall be required to renew such declaration.
Second. Not less than two years nor more than seven years after he
has made such declaration of intention he shall make and file, in dupli-
cate, a petition in writing, signed by the applicant in his own hand-
writing and duly verified, in which petition such applicant shall state
his full name, his place of residence (by street and number, if possi-
ble), his occupation, and, if possible, the date and place of his birth;
the place from which he emigrated, and the date and place of his ar-
rival in the United States, and, if he entered through a port, the name
of the vessel on which he arrived; the time when and the place and
name of the court where he declared his intention to become a citizen
of the United States ; if he is married he shall state the name of his
wife and, if possible, the country of her nativity and her place of resi-
dence at the time of filing his petition; and if he has children, the
name, date, and place of birth and place of residence of each child
living at the time of the filing of his petition : Provided, That if he
has filed his declaration before the passage of this Act he shall not be
required to sign the petition in his own handwriting.
The petition shall set forth that he is not a disbeliever in or opposed
to organized government, or a member of or affiliated with any organ-
ization or body of persons teaching disbelief in or opposed to organ-
ized government, a polygamist or believer in the practice of polygamy,
and that it is his intention to become a citizen of the United States and
to renounce absolutely and forever all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty, and particularly by
name to the prince, potentate, state, or sovereignty of which he at the
time of filing of his petition may be a citizen or subject, and that it is
his intention to reside permanently within the United States, and
whether or not he has been denied admission as a citizen of the United
States, and, if denied, the ground or grounds of such denial, the court
or courts in which such decision was rendered, and that the cause for
such denial has since been cured or removed, and every fact material
to his naturalization and required to be proved upon the final hearing
of his. application.
22924—08 80
1266 MILITAKY LAWS OF THE UNITED STATES. >
•
The petition shall also be verified by the affidavits of at least two
credible witnesses, who are citizens of the United States, and who
shall state in their affidavits that they have personally known the
applicant to be a resident of the United States for a period of at least
five years continuously, and of the State, Territory, or district in
which the application is made for a period of at least one year imme-
diately preceding the date of the filing of his petition, and that they
each have personal knowledge that the petitioner is a person of good
moral character, and that he is in every way qualified, in their opinion,
to be admitted as a citizen of the United States.
At the time of filing his petition there shall be filed with the clerk
of the court a certificate from the Department of Commerce and
Labor, if the petitioner arrives in the United States after the passage
of this Act, stating the date, place, and manner of his arrival in the
United States, and the declaration of intention of such petitioner,
which certificate and declaration shall be attached to and made a part
of said petition.
Third. He shall, before he is admitted to citizenship, declare on
oath in open court that he will support the Constitution of the United
States, and that he absolutely and entirely renounces and abjures all
allegiance and fidelity to any foreign prince*, potentate, state, or
sovereignty, and particularly by name of the prince, potentate, state,
or sovereignty of which he was before a citizen or subject; that he will
support and defend the Constitution and laws of the United States
against all enemies, foreign and domestic, and bear true faith and
allegiance to the same.
Fourth. It shall be made to appear to the satisfaction of the court
admitting any alien to citizenship that immediately preceding the
date of his application he has resided continuously within the United
States five years at least, and within the State or Territory where such
court is at the time held one year at least, and that during that time
he has behaved as a man of good moral character, attached to the
principles of the Constitution of the United States, and well disposed
to the good order and happiness of the same. In addition to the oath
of the applicant, the testimony of at least two witnesses, citizens of the
United States, as to the facts of residence, moral character, and at-
tachment to the principles of the Constitution shall be required, and
the name, place of residence, and occupation of each witness shall be
set forth in the record.
Fifth. In case the alien applying to be admitted to citizenship has
borne any hereditary title, or has been of any of the orders of nobility
in the kingdom or state from which he came, he shall, in addition to
the above requisites, make an express renunciation of his title or order
SUPPLEMENT. 1267
of nobility in the court to which his application is made, and his re-
nunciation shall be recorded in the court.
Sixth. When any alien who has declared his intention to become a
citizen of the United States dies before he is actually naturalized the
widow and minor children of such alien may, by complying with the
other provisions of this Act, be naturalized without making any decla-
raton of intention. Sec. 4, Act of June 29, 1906 (3 '4 Stats, 596).
(This and the preceding paragraph — 1880a — take the place of paragraphs
1880, 1884, and 1885, which are repealed by section 26 of the act above cited.)
1881a. The clerk of the court shall, immediately after filing the
petition, give notice thereof by posting in a public and conspjcious
place in his office, or in the building in which his office is situated,
under an appropriate heading, the name, nativity, and residence of
the alien, the date and place of his arrival in the United States, and
the date, as nearly as may be, for the final hearing of his petition,
and the names of the witnesses whom the applicant expects to summon
in his behalf; and the clerk shall, if the applicant requests it, issue
a subpoena for the witnesses so named by the said applicant to appear
upon the day set for the final hearing, but in case such witnesses can
not be produced upon the final hearing other witnesses may be sum-
moned. Sec. 6, Act of June 29, 1906 (34 Stats., 598).
(This paragraph takes the place of paragraph 1881, which is repealed by
section 26 of the act above cited.)
1881b. Petitions for naturalization may be made and filed during,
term time or vacation of the court and shall be docketed the same day
a- filed, but final action thereon shall be had only on stated days, to
be fixed by rule of the court, and in no case shall final action be had
upon a petition until at least ninety days have elapsed after filing and
posting the notice of such petition: Provided, That no person shall
be naturalized nor shall any certificate of naturalization be issued
by any court within thirty days preceding the holding of any gen-
eral election within its territorical jurisdiction. It shall be lawful,
at the time and as a part of the naturalization of any alien, for the
court, in its discretion, upon the petition of such alien, to make a de-
cree changing the name of said alien, and his certificate of naturaliza-
tion shall be issued to him in accordance therewith. Sec. 6, Act of
June .'.9. 1906 (34 Stats., 598).
1885a. Any foreign woman who acquires American citizenship by
marriage to an American shall be assumed to retain the same after
the termination of the marital relation if she continue, to reside in
the United State, unless she makes formal renunciation thereof be-
fore a court having jurisdiction to naturalize aliens, or if she resides
1268 MILITARY LAWS OF THE UNITED STATES.
abroad she may retain her citizenship by registering as such before
a United States consul within one year after the termination of such
marital relation. Sec. 4, Act of March 2, 1907 (34 Stats., 1229}.
(This paragraph takes the place of paragraph 1885, which was repealed by
section 26 of the act of June 29, 1906.)
1887a. In case the petitioner has not resided in the State, Territory,
or district for a period of five years continuously and immediately
preceding the filing of his petition he may establish by two witnesses,
both in his petition and at the hearing, the time of his residence
within the State, provided that it has been for more than one year,
and the remaining portion of his five years' residence within the
United States required by law to be established may be proved by the
depositions of two or more witnesses who are citizens of the United
States, upon notice to the Bureau of Immigration and Naturalization
and the United States attorney for the district in which said wit-
nesses may reside. Sec. 10, Act of June 29, 1906 (34 Stats., 599).
1889a. A child born without the United States of alien parents
shall be deemed a citizen of the United States by virtue of the natu-
ralization of or resumption of American citizenship by the parent :
Provided, That such naturalization or resumption takes place during
the minority of such child: And provided further, That the citizen-
ship of such minor child shall begin at the time such minor child
begins to reside permanently in the United States. Sec. 5, Act of
March 2, 1907 (34 Stats., 1229).
(See paragraph 1889.)
1892a. No person who disbelieves in or who is opposed to all organ-
ized government, or who is a member of or affiliated with any organi-
zation entertaining and teaching such disbelief in or opposition to all
organized government, or who advocates or teaches the duty, neces-
sity, or propriety of the unlawful assaulting or killing of any officer
or officers, either of specific individuals or of officers generally, of the
Government of the United States or of any other organized govern-
ment, because of his or their official character, or who has violated
any of the provisions of this Act, shall be naturalized or be made a
citizen of the United States. All courts and tribunals and all judges
and officers thereof having jurisdiction of naturalization proceedings
or duties to perform in regard thereto shall, on the final application
for naturalization, make careful inquiry into such matters, and before
issuing the final order or certificate of naturalization cause to be
entered of record the affidavit of the applicant and of his witnesses
so far as applicable, reciting and affirming the truth of every material
fact requisite for naturalization. All final orders and certificates of
naturalization hereafter made shall show on their face specifically
SUPPLEMENT. 1269
that said affidavits were duly made and recorded, and all orders and
certificates that fail to show such facts shall be null and void.
That any person who purposely procures naturalization in viola-
tion of the provisions of this section shall be fined not more than five
thousand dollars, or shall be imprisoned not less than one nor more
than ten years, or both, and the court in which such conviction is had
shall thereupon adjudge and declare the order or decree and all cer-
tificates admitting such person to citizenship null and void. Juris-
diction is hereby conferred on the courts having jurisdiction of the
trial of such offense to make such adjudication.
That any person who knowingly aids, advises, or encourages any
such person to apply for or to secure naturalization or to file the pre-
liminary papers declaring an intent to become a citizen of the United
States, or who in any naturalization proceeding knowingly procures
or gives false testimony as to any material fact, or who knowingly
makes an affidavit false as to any material fact required to be proved
in. such proceeding, shall be fined not more than five thousand dollars,
or imprisoned not less than one nor more than ten years, or both.
Sec. 39, Act of March 3, 1903 (32 Stats., 128%).
1892b. No person who disbelieves in or who is opposed to organized
government, or who is a member of or affiliated with any organization
entertaining and teaching such disbelief in or opposition to organized
government, or who advocates or teaches the duty, necessity, or
propriety of the unlawful assaulting or killing of any officer or offi-
cers, either of specific individuals or of officers generally, of the Gov-
ernment of the United States, or of any other organized government,
because of his or their official character, or who is a polygamist, shall
be naturalized or be made a citizen of the United States. Sec. 7, Act
of June 29, 1906 (31^ Stats., 598).
(This provision takes the place of a similar provision contained in paragraph
1892a, the whole of which is repealed by section 26 of the act above cited.)
1892c. No alien shall hereafter be naturalized or admitted as a citi-
zen of the United States who can not speak the English language:
Provided, That this requirement shall not apply to aliens who are
physically unable to comply therewith, if they are otherwise qualified
to become citizens of the United States : And provided further, That
the requirements of this section shall not apply to any alien who has
prior to the passage of this Act declared his intention to become a citi-
zen of the United States in conformity with the law in force at the
date of making such declaration : Provided further, That the require-
ments of section eight shall not apply to aliens who shall -hereafter
declare their intention to become citizens and who shall make home-
1270 MILITAKY LAWS OF THE UNITED STATES.
stead entries upon the public lands of the United States and comply
in all respects with the laws providing for homestead entries on such
lands. Sec. 8, Act of June 29, 1906 (34 Stats., 599).
1892d. Every final hearing upon such petition shall be had in open
court before a judge or judges thereof, and every final order which
may be made upon such petition shall be under the hand of the court
and entered in full upon a record kept for that purpose, and upon
such final hearing of such petition the applicant and witnesses shall
be examined under oath before the court and in the presence of the
court. Sec. 9, Act of June %9, 1906 (34 Stats., 599).
(This provision takes the place of a similar provision contained in paragraph
1892a, the whole of which is repealed by section 26 of the act above cited.)
1892e. The United States shall have the right to appear before any
court or courts exercising jurisdiction in naturalization proceedings
for the purpose of cross-examining the petitioner and the witnesses
produced in support of his petition concerning any matter touching or
in any way affecting his right to admission to citizenship, and shall
have the right to call witnesses, produce evidence, and be heard in
opposition to the granting of any petition in naturalization proceed-
ings. Sec. 11, Act of June 29, 1906 (34 Stats., 599).
1892f. It shall be the duty of the United States district attorneys
for the respective districts, upon affidavit showing good cause there-
for, to institute proceedings in any court having jurisdiction to
naturalize aliens in the judicial district in which the naturalized citi-
zen may reside at the time of bringing the suit, for the purpose of
setting aside and canceling the certificate of citizenship on the ground
of fraud or on the ground that such certificate of citizenship was
illegally procured. In any such proceedings the party holding the
certificate of citizenship alleged to have been fraudulently or ille-
gally procured shall have sixty days personal notice in which to make
answer to the petition of the United States ; and if the holder of such
certificate be absent from the United States or from the district in
which he last had his residence, such notice shall be given by publica-
tion in the manner provided for the service of summons by publica-
•tion or upon absentees by the laws of the State or the place where
such suit is brought.
If any alien who shall have secured a certificate of citizenship
under the provisions of this Act shall, within five years after the
issuance of such certificate, return to the country of his nativity, or
go to any other foreign country, and take permanent residence
therein, it shall be considered prima facie evidence of a lack of inten-
tion on the part of such alien to become a permanent citizen of the
United States at the time of filing his aplication for citizenship, and,
SUPPLEMENT. 1271
in the absence of countervailing evidence, it shall be sufficient in the
proper proceeding to authorize the cancellation of his certificate of
citizenship as fraudulent, and the diplomatic and consular officers of
the United States in foreign countries shall from time to time,
through the Department of State, furnish the Department of Justice
with the names of those within their respective jurisdictions who have
such certificates of citizenship and who have taken permanent resi-
dence in the country of their nativity, or in any other foreign coun-
try, and such statements, duly certified, shall be admissible in evidence
in all courts' in proceedings to cancel certificates of citizenship.
Whenever any certificate of citizenship shall be set aside or can-
celed, as herein provided, the court in which such judgment or decree
is rendered shall make an order canceling such certificate of citizen-
ship and shall send a certified copy of such order to the Bureau of
Immigration and Naturalization ; and in case such certificate was not
originally issued by the court making such order it shall direct the
clerk of the court to transmit a copy of such order and judgment to
the court out of which such certificate of citizenship shall have been
originally issued. And it shall thereupon be the duty of the clerk of
the court receiving such certified copy of the order and judgment of
the court to enter the same of record and to cancel such original
certificate of citizenship upon the records and to notify the Bureau
of Immigration and Naturalization of such cancellation.
The provisions of this section shall apply not only to certificates of
citizenship issued under the provisions of this Act, but to all certifi-
cates of citizenship which may have been issued heretofore by any
court exercising jurisdiction in naturalization proceedings under
prior laws. Sec. 15, Act of June 29, 1906 (34 Stats., 601).
1892^. Every person who falsely makes, forges, counterfeits, or
causes or procures to be falsely made, forged, or counterfeited, or
knowingly aids or assists in falsely making, forging, or counterfeit-
ing any certificate of citizenship, with intent to use the same, or with
the intent that the same may be used by some other person or per-
sons, shall be guilty of a felony, and a person convicted of such of-
fense shall be punished by imprisonment for not more than ten years,
or by a fine of not more than ten thousand dollars, or by both such
fine and imprisonment. Sec. 16, Act of June 29, 1906 (34 Stats., 602} .
1892h. No person shall be prosecuted, tried, or punished for any
crime arising under the provisions of this Act unless the indictment is
found or the information is filed within five years next after the
commission of such crime. Sec. 24, Act of June 29, 1906 (34 Stats.,
603).
1892i. Any person who knowingly procures naturalization in viola-
tion of the provisions of this Act shall be fined not more than five
}'2,- MILITARY LAWS OF THE UNITED STATES.
thousand dollars, or shall be imprisoned not more than five years, or
both, and upon conviction the court in which such conviction is had
shall thereupon adjudge and declare the final order admitting such
person to citizenship void. Jurisdiction is hereby conferred on the
courts having jurisdiction of the trial of such offense to make such
adjudication. Any person who knowingly aids, advi<es. or en-
courages any person not entitled thereto to apply for or to secure
naturalization, or to file the preliminary papers declaring an intent
to become a citizen of the United States, or who in any naturaliza-
tion proceeding knowingly procures or gives false testimony as* to
any material fact, or who knowingly makes an affidavit false as to
any material fact required to be proved in such proceeding, shall
be fined not more than five thousand dollars, or imprisoned not more
than five years, or both. Sec. 83, Act of June 89, 1906 (34 Stats.,
60S).
(These provisions take the place of similar provisions contained in para-
graph 1892a. which is repealed by section 26 of the act above cited.)
1892J. For the purpose of the prosecution of all crimes and offei
against the naturalization laws of the United States which may have
been committed prior to the date when this Act shall go into effect,
the existing naturalization laws shall remain in full force and effect.
Sec. 26, Act of June 89, 1906 (34 Stats., 603).
1892k. Sections twenty-one hundred and sixty-five, twenty-one
hundred and sixty-seven, twenty-one hundred and sixty-eight.
twenty-one hundred and seventy-three, of the Revised Statutes of the
United States of America, and section thirty-nine of chapter one
thousand and twelve of the Statutes at Large of the United States of
America for the year nineteen hundred and three, and all Acts or
parts of Acts inconsistent with or repugnant to the provisions of this
Act are hereby repealed. Sec. 86, Act of June 89, 1906 (34 Stats.,
603).
(This paragraph repeals paragraphs 1880, 1881, 1884, 1885, 1890, and 1892a.)
18921. The Secretary of Commerce and Labor shall have power to
make such rules and regulations as may be necessary for properly
carrying into execution the various provisions of this Act. Certified
copies of all papers, documents, certificates, and records required to
be used, filed, recorded, or kept under any and aH of the provisions of
this Act shall be admitted in evidence equally with the originals in
any and all proceedings under this Act and in all cases in which the
originals thereof might be admissible as evidence. Sec. 88, Act of
June 89, 1906 (34 Stats., 606).
SUPPLEMENT. 1273
1892m. All the applicable provisions of the naturalization laws of
the United States shall apply to and be held to authorize the admis-
-ioij to citizenship of all persons not citizens who owe permanent
allegiance to the United States, and who may become residents of
any State or organized Territory of the United States, with the fol-
lowing modifications: The applicant shall not be required to re-
nounce allegiance to any foreign sovereignty; he shall make his decla-
ration of intention to become a citizen of the United States at least
two years prior to his admission; and residence within the jurisdic-
tion of the United States, owing such permanent allegiance, shall be
regarded as residence within the United States within the meaning
of the five years' residence clause of the existing law. Sec. 30, Act of
June 29, 1906 (34 Stats., 606).
(See paragraph 1882.)
CHAPTER XXXIX.
THE EMPLOYMENT OF MILITARY FORCE.
NATIONAL QUARANTINE.
206 8a. The Secretary of the Treasury shall have the control, direc-
tion, and management of all quarantine stations, grounds, and
anchora^ lished by authority of the United States, and as soon
as practicable after the approval of this Act shall select and designate
such suitable places for them and establish the same at such points
on or near the coast line of the United States or the border of the
United States and a foreign country, as in his judgment are best
suited for the same and necessary to prevent the introduction of
yellow fever into the United States, and, in his discretion, he may
also establish at the group of islands known as the Dry Tortugas, at
the western end of the Florida reef, and at such other point or
points on or near the coast line of the United States (not to exceed
four in the aggregate) as he deems necessary, quarantine grounds,
stations, and anchorages, whereat or whereto infected vessels bound
for any port in the United States may be detained or sent for the
purpose of being disinfected, having their cargos disinfected and
discharged, if necessary, and their sick treated in hospitals until all
danger of infection or contagion from such vessels, their cargoes,
passengers, or crews has been removed. Sec. 1, Act of June 19,
1906 ( 3 4 Stats., 299).
2068b. In cases in which the title to the land and water so selected
and designated is in the United States it shall be the duty of the
department, bureau, or official of the United States having custody
127.4 MILITARY LAWS OF THE UNITED STATES.
or possession of such land and water, or any part thereof, not used by
the Government for other purposes designated by law, or possession
of said Dry Tortugas Islands, on demand of the Secretary of the
Treasury, to deliver the same into his custody and possession for the
use of the Public Health and Marine-Hospital Service, evidencing
such delivery by a suitable instrument in writing to be delivered to
the Secretary of the Treasury. That in cases in which the title to
such land and water, or any part thereof, is in any other owner than
the United States it shall be the duty of the Secretary of the Treas-
ury to secure the title and possession of the same to the United States
for the use of the Public Health and Marine- Hospital Service of the
United States, by purchase at a reasonable price, if possible; but if,
in his judgment, the price demanded for such property be excessive,
he is hereby authorized to apply to the Attorney-General of the
United States to cause to be instituted, in the proper tribunal, con-
demnation proceedings in the name of the United States for the pur-
pose of acquiring for the United States the title and possession of
such land and water, and said Attorney-General shall, as soon as pos-
sible after such application by the Secretary of the Treasury, cause
such proceedings to be instituted and conducted to a conclusion, and
the custody and possession of such land and water, when duly ac-
quired in accordance with the award made in such condemnation
proceedings, shall be delivered to the Secretary of the Treasury for
the use of the Public Health and Marine-Hospital Service. Sec. 2,
Act of June 19, 1906 (34 Stats., 299}.
2068c. Any vessel, or any officer of any vessel, or other person other
than State health or quarantine officers, entering within the limits
of any quarantine grounds and anchorages, or any quarantine station
and anchorage, or departing therefrom, in disregard of the quaran-
tine rules and regulations or without the permission of the officer in
charge of such quarantine ground and anchorage, or of such quaran-
tine station and anchorage, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be punished by a fine of not more
than three hundred dollars or by imprisonment for not more than
one year, or both, in the discretion of the court. That any master or
owner of any vessel violating any provision of this Act, or any pro-
vision of an Act entitled "An Act granting additional powers and
imposing additional duties on the Marine-Hospital Service," approved
February fifteenth, eighteen hundred and ninety-three, or violating
any rule or regulation made in accordance with this Act or said Act
of February fifteenth, eighteen hundred and ninety-three, relating to
the inspection of vessels, or to the prevention of the introduction of
contagious or infectious diseases into the United States, or any mas-
SUPPLEMENT. 1275
ter, owner, or agent of any vessel making a false statement relative
to the sanitary condition of such vessel or its contents, or as to the
health of any passenger or person thereon shall be deemed guilty of
a misdemeanor, and on conviction thereof shall be punished by a fine
of not more than five hundred dollars or imprisonment for not more
than one year, or both, in the discretion of the court. Sec. 4? Act of
June 19, 1906 (34 Stats., 300).
EXTRADITION.
2093a. The provisions of section ten hundred and fourteen of the
•Revised Statutes,1 so far as applicable, shall apply throughout the
United States for the arrest and removal therefrom to the Philippine
Islands of any fugitive from justice charged with the commission of
any crime or offense against the United States within the Philippine
Islands, and shall apply within the Philippine Islands for the arrest
and removal therefrom to the United States of any fugitive from jus-
tice charged with the commission of any crime or offense against the
United States. Such fugitive may, by any judge or magistrate of the
Philippine Islands, and agreeably to the usual mode of process
against offenders therein, be arrested and imprisoned, or bailed, as the
case may be, pending the issuance of a warrant for his removal to the
United States, which warrant it shall be the duty of a judge of the
court of first instance seasonably to issue, and of the officer or agent
of the United States designated for the purpose to execute. Such
officer or agent, when engaged in executing such warrant without the
Philippine Islands, shall have all the powers of a marshal of the
United States so far as such powers are requisite for the prisoner's
safe-keeping and the execution of the warrant. Sec. 1, Act of Feb-
ruary 9, 1903 (32 Stats., 806).
2093b. The provisions of sections fifty-two hundred and seventy-
eight and fifty-two hundred and seventy-nine of the Revised Stat-
1 SEC. 1014, R. S. For any crime or offense against the United States, the
offender may, by any justice or judge of the United States, or by any commis-
sioner of a circuit court to take bail, or by any chancellor, judge of a supreme
or superior court, chief or first judge of common pleas, mayor of a city, justice
of the peace, or other magistrate, of any State where he may be found, and
agreeably to the usual mode of process against offenders in such State; and at
the expense of the United States, be arrested and imprisoned, or bailed, as the
case may be, for trial before such court of the United States as by law has cog-
nizance of the offense. Copies of the process shall be returned as speedily as
may be into the clerk's office of such court, together with the recognizances of
the witnesses for their appearance to testify in the case. And where any
offender or witness is committed in any district other than that where the
offense is to be tried, it shall be the duty of the judge of the district where
such offender or witness is imprisoned, seasonably to issue, and of the marshal
to execute, a warrant for his removal to the district where the trial is to be
had.
1276 MILITARY LAWS OF THE UNITED STATES.
utes,1 so far as applicable, shall apply to the Philippine Islands,
which, for the purposes of said sections, shall be deemed a Territory
within the meaning thereof. Sec. 2, Act of February 9, 1903 (32
Stats., 807).
2093c. The provisions of sections fifty-two hundred and seventy,
fifty-two hundred and seventy-one, fifty-two hundred and seventy-
two, fifty-two hundred and seventy-three, fifty-two hundred and
seventy-four, fifty-two hundred and seventy-five, fifty-twro hundred
and seventy-six,, and fifty-two hundred and seventy-seven of the Re-
vised Statutes (as -amended by the Act approved August third,
eighteen hundred and eighty-two), so far as applicable, shall apply
to the Philippine Islands for the arrest and removal therefrom of any
fugitives from justice charged with the commission within the juris-
diction of any foreign government of any of the crimes provided for
by treaty between the United States and such foreign nation, and for
the delivery by a foreign government of any person accused of crime
committed within the jurisdiction of the Philippine Islands. Such
fugitive from justice of a foreign country may, upon warrant duly
issued by any judge or magistrate of the Philippine Islands, and
agreeably to the usual mode of process against offenders therein, be
arrested and brought before such judge or magistrate, who shall pro-
ceed in the matter in accordance with the provisions of the Revised
Statutes hereby made applicable to the Philippine Islands : Provided,
That for the purposes of this section the order or warrant for delivery
of a person committed for extradition prescribed by section fifty-two
hundred and seventy-two of the Revised Statutes shall be issued by
the governor of the Philippine Islands under his hand and seal of
office, and not by the Secretary of State.
SEC. 2. That the provisions of sections fifty-four hundred and nine
and fifty-four hundred and ten of the Revised Statutes are hereby
1 SEC. 5278, R. S. Whenever the executive authority of any State or Territory
demands any person as a fugitive from justice, of the executive authority of
any State or Territory, to which such person has fled, and produces a copy of
an indictment found or an affidavit made before a magistrate of any State or
Territory, charging the person demanded with having committed treason, fel-
ony, or other crime, certified as authentic by the governor or chief magistrate
of the State or Territory from whence the person so charged has fled, it shall
be the duty of the executive authority of the State or Territory to which such
person has fled to cause him to be arrested and secured, and to cause notice of
the arrest to be given to the executive authority making such demand, or to the
agent of such authority appointed to receive the fugitive, and to cause the fugi-
tive to be delivered to such agent when he shall appear. If no such agent ap-
pears within six months from the time of the arrest, the prisoner may be dis-
charged. All costs of expenses incurred in the apprehending, securing, and
transmitting such fugitive to the State or Territory making such demand, shall
be paid by such State or Territory.
SEC. 5279, R. S. Any agent so appointed who receives the fugitive into his
custody, shall be empowered to transport him to the State or Territory from
which he has fled. And every person who, by force, sets at liberty or rescues
the fugitive from such agent while so transporting him, shall be fined not more^
than five hundred dollars or imprisoned not more than one year.
SUPPLEMENT. 1277
made applicable to proceedings in extradition from the Philippine
Islands, either to the United States under an Act entitled "An Act to
provide for the removal of persons accused of crime to and from the
Philippine Islands for trial," approved February ninth, nineteen hun-
dred and three, or to foreign countries under the provisions of this
Act. Sees. 1 and 2, Act of February 6, 1905 (33 Stats., 698} .
(This paragraph makes applicable to the Philippine Islands paragraphs
2090-2092.)
RESTRICTION UPON THE USE OF MILITARY FORCE.
2103a. From and after the passage of this act it shall not be lawful
to employ any part of the Army of the United States, as a posse
comitatus, or otherwise, for the purpose of executing the laws, except
in such cases and under such circumstances as such employment of
said force may be expressly authorized by the Constitution or by act
of Congress ; and no money appropriated by this act shall be used to
pay any of the expenses incurred in the employment of any troops in
violation of this section and any person wilfully violating the pro-
visions of this section shall be deemed guilty of a misdemeanor and
on conviction thereof shall be punished by fine not exceeding ten thou-
sand dollars or imprisonment not exceeding two years or by both such
fine and imprisonment. Sec. 15, Act of June 18, 1878 (20 Stats., 152) .
(This paragraph takes the place of paragraph 2103, from which a portion of
the text was omitted.)
THE LAW OF WAR MILITARY OCCUPATION.
2112a. The action of the President of the United States heretofore
taken by virtue of the authority vested in him as Commander in Chief
of the Army and Navy, as set forth in his order of July twelfth,
eighteen hundred and ninety-eight, whereby a tariff of duties and
taxes as set forth by said order was to be levied and collected at all
ports and places in the Philippine Islands upon passing into the occu-
pation and possession of the forces of the United States, together with
the subsequent amendments of said order, are hereby approved, rati-
fied, and confirmed, and the actions of the authorities of the govern-
ment of the Philippine Islands, taken in accordance with the provi-
sions of said order and subsequent amendments, are hereby approved :
Provided, That nothing contained in this section shall be held to
amend or repeal an Act entitled " An Act temporarily to provide
revenue for the Philippine Islands, and for other purposes," approved
March eight, nineteen hundred and two. Sec. 2, Act of July 1, 1902
(32 Stats., 692).
2112b. The President of the United States, during such time as and
whenever the sovereignty and authority of the United States encoun-
1278 MILITABY LAWS OF THE UNITED STATES.
ter armed resistance in the Philippine Islands, until otherwise pro-
vided by Congress, shall continue to regulate and control commercial
intercourse with and within said Islands by such general rules and
regulations as. he, in his discretion, may deem most conducive to the
public interests and the general welfare. Sec. 3, Act of July 1, 1902
(32 Stats., 692).
CHAPTER XL.
PENSIONS.
THE GENERAL PENSION LAW.
2125a. From and after the passage of this Act all persons on the
pension roll, and all persons hereafter granted a pension, who, while
in the military or naval service of the United States and in the line of
duty, shall have lost both eyes, or who have become totally blind from
causes occurring in the service of the United States, shall receive a
pension at the rate of one hundred dollars per month : Provided, how-
ever, That this Act shall not be so construed as to reduce any pension
under any Act, public or private. Act of April 8, 190 1+ (33 Stats.,
163).
(This paragraph amends paragraph 2125.)
2131a. From and after the passage of this Act all persons on the
pension roll, and all persons hereafter granted a pension, who, while
in the military or naval service of the United States and in the line of
duty, shall have lost one hand or one foot, or been totally disabled in
the same, shall receive a pension at the rate of forty dollars per
month ; that all persons who, in like manner, shall have lost an arm at
or above the elbow or a leg at or above the knee, or been totally dis-
abled in the same, shall receive a pension at the rate of forty-six dol-
lars per month ; that all persons who, in like manner, shall have lost
an arm at the shoulder joint or a leg at the hip joint, or so near the
shoulder or hip joint or where the same is in such a condition as to
prevent the use of an artificial limb, shall receive a pension at the
rate of fifty-five dollars per month, and that all persons who, in like
manner, shall have lost one hand and one foot, or been totally dis-
abled in the same, shall receive a pension at the rate of sixty dollars
per month; and that all persons who, in like manner, shall have lost
both feet shall receive a pension at the rate of one hundred dollars per
month : Provided, however, That this Act shall not be so construed as
to reduce any pension under any act, public or private. Act of
March 2, 1903 (32 Stats., 944).
(This paragraph amends paragraph 2131.)
SUPPLEMENT. 1279
2136a. The investigation of claims for the reimbursement of ex-
penses of the last sickness and burial of deceased pensioners shall be
at the instance and under the direction of the Secretary of the Treas-
ury, and no part of any accrued pension shall hereafter be used to
reimburse any State, county, or municipal corporation for expenses
incurred by such State, county, or municipal corporation under State
law for expenses of the last sickness or burial of a deceased pen-
sioner. Act of March 3, 1903 (32 Stats., 1111}.
DEPENDENT RELATIVES.
2149a. Section forty-seven hundred and eight of the laws of the
United States governing the granting of army and navy pensions, is
amended to read as follows :
" SEC. 4708. The remarriage of any widow, dependent mother, or
dependent sister entitled to pension shall not bar her right to such pen-
sion to the date of her remarriage, wrhether an application therefor was
filed before or after such marriage; but on the remarriage of any
widow, dependent mother, or dependent sister having a pension such
pension shall cease : Provided, however, That any widow who was the
lawful wife of any officer or enlisted man or other person in the Army,
Navy, or Marine Corps of the United States, as described in para-
graphs one, two, and three of section forty-six hundred and ninety-
three of the Revised Statutes of the United States, during the period
of his service in any war, and whose name was placed or shall here-
after be placed on the pension roll because of her husband's death as
the result of wound or injury received or disease contracted in such
military or naval service, and whose name has been or shall hereafter
be dropped from said pension roll by reason of her marriage to another
person who has since died or shall hereafter die, or from whom she
has been heretofore or shall be hereafter divorced, upon her own appli-
cation and without fault on her part, and if she is without means of
support other than her daily labor, as defined by the Acts of June
twenty-seventh, eighteen hundred and ninety, and May ninth, nineteen
hundred, shall be entitled to have her name again placed on the pen-
sion roll at the rate now provided for widows by the Acts of July four-
teenth, eighteen hundred and sixty-two, March third, eighteen hun-
dred and seventy-three, and March nineteenth, eighteen hundred and
eighty-six, such pension to commence from the date of the filing of
her application in the Pension Bureau after the approval of this Act:
And provided further, That where such widow is already in receipt of
a pension from the United States she shall not be entitled to restora-
tion under this Act: And provided further, That where the pension
of said widow on her second or subsequent marriage has accrued to a
1280 MILITARY LAWS OF THE UNITED STATES.
helpless or idiotic child, or a child or children under the age of sixteen
years, she shall not be entitled to restoration under this Act unless said
helpless or idiotic child, or child or children under sixteen years of
age, be then a member or members of her family and cared for by her,
and upon the restoration of said widow the payment of pension to said
child or children shall cease." Sec. 1, Act of February 28, 1903 (3%
Stats., 920).
(This paragraph takes the place of paragraph 2149.)
2149b. The provisions of this Act shall be extended to those widows
otherwise entitled whose husbands died of wounds, injuries, or disease
contracted during the period of their military and naval service, but
who were deprived of pension under the Act of March third, eighteen
hundred and sixty-five, because of their failure to draw any pension
by reason of their remarriage. Sec. 2, Act of February 28, 1903 (32
Stats., 921).
THE DEPENDENT PENSION LAW.
2151a. Any person who served ninety days or more in the military
or naval service of the United States during the late civil war or sixty
days in the war with Mexico, and who has been honorably discharged
therefrom, and who has reached the age of sixty-two years or over,
shall, upon making proof of such facts according to such rules and
regulations as the Secretary of the Interior may provide, be placed
upon the pension roll, and be entitled to receive a pension as follows :
In case such person has reached the age of sixty-two years, twelve dol-
lars per month ; seventy years, fifteen dollars per month ; seventy-five
years or over, twenty dollars per month ; and such pension shall com-
mence from the date of the filing of the application in the Bureau of
Pensions after the passage and approval of this Act : Provided, That
pensioners who are sixty -two years of age or over, and who are now
receiving pensions under existing laws, or whose claims are pending
in the Bureau of Pensions, may, by application to the Commissioner
of Pensions in such form as he may prescribe, receive the benefits of
this Act; and nothing herein contained shall prevent any pensioner
or person entitled to a pension from prosecuting his claim and receiv-
ing a pension under any other general or special Act : Provided, That
no person shall receive a pension under any other law at the same time
or for the,same period that he is receiving a pension under the pro-
visions of this Act : Provided further, That no person who is now re-
ceiving or shall hereafter receive a greater pension under any other
general or special law than he would be entitled to receive under the
provisions herein shall be pensionable under this Act.
SEC. 2. That rank in the service shall not be considered in applica-
tions filed hereunder.
SUPPLEMENT. 1281
SEC. 3. That no pension attorney, claim agent, or other person shall
be entitled to receive any compensation for services rendered in pre-
senting any claim to the Bureau of Pensions, or securing any pension,
under this Act. Act of February 6, 1907 (34 Stats., 879).
(See paragraphs 2166 and 2166a.)
2151b. The benefits of the Act of February sixth, nineteen hundred
and seven, entitled "An Act granting pensions to certain enlisted men,
soldiers, and officers who served in the civil war and the war with
Mexico," are hereby extended to include any person who served the
period of time therein specified during the late civil war or in the war
with Mexico and who is now or may hereafter become entitled to
pension under the Acts of June twenty-seventh, eighteen hundred
and ninety, February fifteenth, eighteen hundred and ninety-five,
and the joint resolution of July first, nineteen hundred and two, or
the Acts of January twenty-ninth, eighteen hundred and eighty-
seven, March third, eighteen hundred and ninety-one, and February
seventeenth, eighteen hundred and ninety-seven. Act of March 4,
1907 (34 Stats., 1406).
(See paragraphs 2166, 2166a, and 2151a.)
2151c. Hereafter the age of sixty-two years and over shall be con-
sidered a permanent specific disability within the meaning of the
pension laws. Act of March 4, 1907 (34 Stats., 1406).
(See paragraph 2151.)
2154a. The Act approved June twenty-seventh, eighteen hundred
and ninety, entitled "An Act granting pensions to soldiers and sailors
who are incapacitated for the performance of manual labor, and pro-
viding for pensions to widows, minor children, and dependent
parents," is construed and held to include all persons and the widows
and minor children of all deceased persons, subject to the limitations
of said Act, who served for ninety days in the military or naval serv-
ice of the United States during the late war of the rebellion, and who
have been honorably discharged therefrom, and section forty-seven
hundred and sixteen, Revised Statutes United States, is amended
accordingly : Provided, however, That the foregoing shall not apply
to those who served in the First, Second, Third, Fourth, Fifth, and
Sixth regiments United States Volunteer Infantry who had a prior
service in the Confederate army or navy and who enlisted in said
regiments while confined as prisoners of war under a stipulation
that they were not to be pensionable under the laws of the United
States, nor to those who, having had such prior service, enlisted in
the military or naval service of the United States after the first day
22924—08 81
1282 MILITARY LAWS OF THE UNITED STATES.
of January, eighteen hundred and sixty-five. Sec. 1, Act of July 1,
1902 (32 Stats., 750).
(This paragraph amends paragraph 2227.)
MEXICAN WAR PENSIONS.
2166a. The Secretary of the Interior is hereby authorized and
directed to place on the pension roll, at the rate of twelve dollars per
month, all Mexican war survivors now on the roll, or who may here-
after be placed on the roll, under the Acts of January twenty-ninth,
eighteen hundred and eighty-seven, March third, eighteen hundred
and ninety-one, and February fifth, eighteen hundred and ninety-
seven. Act of March 3, 1903 (32 Stats.,
PENSIONS FOR INDIAN WARS, 1832-1842.
2167a. The provisions, limitations, and benefits of the Act entitled
"An Act granting pensions to survivors of the Indian wars of eight-
een hundred and thirty-two to eighteen hundred and forty-two, in-
clusive, known as the Black Hawk war, Creek war, Cherokee disturb-
ances, and the Seminole war," approved July twenty-seventh, eight-
een hundred and ninety-two, be, and the same are hereby, extended,
from the date of the passage of this Act, to the surviving officers and
enlisted men, including marines, militia, and volunteers of the mili-
tary and naval service of the United States who served for thirty
days or more and were honorably discharged under the United
States military, State, Territorial, or provisional authorities in the
Florida and Georgia Seminole Indian war of eighteen hundred and
seventeen and eighteen hundred and eighteen; the Fevre River In-
dian war of Illinois of eighteen hundred and twenty-seven; the Sac
and Fox Indian war of eighteen hundred and thirty-one ; the Sabine
Indian disturbances of eighteen hundred and thirty-six and eight-
een hundred and thirty-seven; the Cayuse Indian war of eighteen
hundred and forty-seven and eighteen hundred and forty-eight, on
the Pacific coast; the Florida wars with the Seminole Indians, from
eighteen hundred and forty-two to eighteen hundred and fifty-eight,
inclusive; the Texas and New Mexico Indian war of eighteen hun-
dred and forty-nine to eighteen hundred and fifty-six; the Califor-
nia Indian disturbances of eighteen hundred and fifty-one and eight-
een hundred and fifty-two; the Utah Indian disturbances of eight-
een hundred and fifty to eighteen hundred and fifty-three, inclusive,
and the Oregon and Washington Territory Indian wars from eight-
een hundred and fifty-one to eighteen hundred and fifty-six, inclu-
sive; and also to include the surviving widows of such officers and
SUPPLEMENT. 1283
enlisted men : Provided, That such widows have not remarried. Act
of June 27, 1902 (32 Stats., 399}.
(See paragraph 2167.)
2167b. Where there is no record of enlistment or muster into the
service of the United States in any of the wars mentioned in this Act
the record of pay by the United States shall be accepted as full and
satisfactory proof of such enlistment and service. Act of June 27,
1902 (32 Stats., 399}.
*»
DECLARATION AND EVIDENCE IN PENSION CASES.
220 la. In the administration of the pension laws any enlisted man
of the Army, including regulars, volunteers, and militia, or any
appointed or enlisted man of the Navy or Marine Corps, who was
honorably discharged from the last contract of service entered into
by him during the late war of the rebellion, shall be held and consid-
ered to have been honorably discharged from all similar contracts
of service previously entered into by him with the United States dur-
ing said war : Provided, That such enlisted or appointed man served
not less than six months under said last enlistment or appointment,
that his entire service under said last enlistment or appointment was
faithful, and that he did not receive by reason of said last enlistment
or appointment any bounty or gratuity other than from the United
States in excess of that to which he would have been entitled if he
had continued to serve faithfully until honorably discharged under
any contract of service previously entered into by him, either in the
Army, Navy, or Marine Corps, during the war of the rebellion. Sec.
2, Joint Res. of July 1, 1902 (32 Stats., 750}.
2201b. In the administration of the pension laws any enlisted man
or commissioned officer of the Army, including regulars, volunteers,
and militia, or any appointed or enlisted man or commissioned
officer of the Navy or Marine Corps, who was honorably discharged
from any subsequent contract of service entered into by him during
the late war of the rebellion, shall be held and considered to have
been honorably discharged from all previous contracts of service as
commissioned officer or enlisted man previously entered into by him
with the United States during said war : Provided, That such enlisted
or appointed man or commissioned officer served not less than six
months under any subsequent enlistment, appointment, or commis-
sion; that his entire service under any said subsequent enlistment,
appointment, or commission was faithful, and that he did not receive
by reason of said enlistment, appointment, or commission any bounty
or gratuity other than from the United States in excess of that to
which he would have been entitled if he had continued to serve faith-
1284 MILITARY LAWS OF THE UNITED STATES.
fully until honorably discharged under any contract of service pre-
viously entered into by him, either in the Army, Navy, or Marine
Corps, during the war of the rebellion. Joint Res. of June 28, 1906
(34 Stats., 836) .
(This paragraph amends section 2 of the joint resolution of July 1, 1902, and
takes the place of paragraph 2201a.)
2g03a. No pension attorney, claim agent, or other person shall be
entitled to receive any compensation for services rendered in secur-
ing the introduction of a bill or the passage thereof through Congress
granting pension or increase of pension; and any person who shall,
directly or indirectly, contract for, demand, receive, or retain any
compensation for such services shall be deemed guilty of an offense,
and upon conviction thereof shall, for each and every such offense,
be fined not exceeding five hundred dollars or imprisoned not exceed-
ing two years, or both, in the discretion of the court. Act of March
4,1907 (34 Stats., 1407).
CHAPTER XLI.
THE SOLDIERS' HOME.
BOARD OF COMMISSIONERS.
2263a. The chief of the Military Secretary's Department shall be a
member of the Board of Commissioners of the United States Soldiers'
Home. Act of April 23, 1904 (33 Stats., 263) .
CHAPTER XLII.
THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.
OFFICERS OF THE BRANCHES OF THE NATIONAL HOME.
2298a. Hereafter the officers of the National Home for Disabled
Volunteer Soldiers, and officers under the Board of Managers thereof,
shall be appointed, so far as may be practicable, from persons whose
military or naval service would render them eligible, if disabled and
not otherwise provided for, for admission to the Home, and they may
be appointed, removed, and transferred, from time to time, as the
interests of the institution may require, by the Board of Managers.
Act of June 28, 1902 (32 Stats., 472).
(This paragraph amends paragraph 2298.)
SUPPLEMENT. 1285
ACCOUNTS.
2316a. At the Central Branch, at Dayton, Ohio: For current ex-
penses, namely: Pay of officers and noncommissioned officers of the
Home, with such exceptions as are hereinafter noted, and their clerks
and orderlies ; also payments for chaplains and religious instruction,
printers, bookbinders, librarians, musicians, telegraph and telephone
operators, guards, policemen, watchmen, and fire company; for all
property and materials purchased for their use, including repairs not
done by the Home ; for necessary expenditures for articles of amuse-
ment, boats, library books, magazines, papers, pictures, and musical
instruments, and for repairs not done by the Home ; and for station-
ery, advertising, legal advice, for payments due heirs of deceased
members: Provided, That all receipts on acount of the effects of de-
ceased members during the fiscal year shall be also available for such
payments; and for such other expenditures as can not properly be
included under other heads of expenditure, sixty thousand dollars.
Act of April 28, 1904 (33 Stats., 500).
(This paragraph relates to the sundry civil appropriation act for the fiscal
year ending June 30, 1905, and is a reenactment of previous legislation on the
subject.)
STATE AND TERRITORIAL HOMES.
232la. No part of this appropriation shall be apportioned to any
State or Territorial Home until its laws, rules, or regulations respect-
ing the pensions of its inmates be made to conform to the provisions
of section four of an Act approved March third, eighteen hundred
and eighty-three, entitled "An Act prescribing regulations for the
Soldiers' Home located at Washington, in the District of Columbia,
and for other purposes ;" but the above proviso shall not apply to any
State or Territorial Home into which the wives or widows of soldiers
are admitted and maintained. Act of April 28, 1904 ($$ Stats., 604).
(This paragraph relates to the sundry civil appropriation for the fiscal year
ending June 30, 1905. See paragraphs 2263-2266, 2268, 2272-2274, 2279, 2281,
2284, and 2285.)
2324a. No part of this appropriation shall be apportioned to any
State or Territorial Home that maintains a bar or canteen where
intoxicating liquors are sold. Act of April 28, 1904 (33 Stats., 504).
(This provision appears for the first time in the annual appropriation for
sundry civil expenses, of April 28, 1904, and is inserted here because it is prob-
able it will become a part of the annual legislation for these Homes.)
2324b. One-half of any sum or sums retained by State Homes on
account of pensions received from inmates shall be deducted from the
aid herein provided for. Act of March 3, 1905 (33 Stats., 1227).
1286 MILITAKY LAWS OF THE UNITED STATES.
PENSIONS TO INMATES.
2328a. Any balance of pension money due a member of the
National Home for Disabled Volunteer Soldiers at the time of his
death shall be paid to his widow, minor children or dependent mother
or father in the order named, and should no widow, minor child, or
dependent parent be discovered within one year from the time of the
death of the pensioner, said balance shall be paid to the post fund of
the Branch of said National Home of which the pensioner was a
member at the time of his death, to be used for the common benefit of
the members of the Home under the direction of the Board of Man-
agers, subject to future reclamation by the relatives hereinbefore
designated, upon application filed with the Board of Managers within
five years after the pensioner's death. Act of July 1, 1902 (32 Stats.,
564}-
(See paragraph 2328.)
CHAPTEK XLIII.
THE GOVERNMENT HOSPITAL FOR THE INSANE.
ADMISSIONS.
2347a. The proviso in the Act approved August seventh, eighteen
hundred and eighty-two, appearing on page three hundred and thirty
of the Twenty-second Statutes at Large, and relating to pensions of
inmates of the Government Hospital for the Insane, is hereby stricken
out and the following inserted :
"Provided, That in addition to the persons now entitled to admis-
sion to said hospital, any inmate of the National Home for Disabled
Volunteer Soldiers who is now or may hereafter become insane shall,
upon an order of the president of the Board of Managers of the said
National Home, be admitted to said hospital and treated therein.
During the time that any pensioner shall be an inmate of the Govern-
ment Hospital for the Insane all money due or becoming due upon his
or her pension shall be paid by the pension agent to the superintendent
of the hospital, upon a certificate by such superintendent that the
pensioner is an inmate of the hospital and is living, and such pension
money shall be by said superintendent disbursed and used, under regu-
lations to be prescribed by the Secretary of the Interior, for the benefit
of the pensioner, and, in the case of a male pensioner, his wife, minor
children, and dependent parents, or, if a female pensioner, her minor
children, if any, in the order named, and to pay his or her board and
maintenance in the hospital; the remainder of such pension money, if
SUPPLEMENT. 1287
any, to be placed to the credit of the pensioner and to be paid to
the pensioner or the guardian of the pensioner in the event of his
or her discharge from the hospital; or, in the event of the death of
said pensioner while an inmate of said hospital, shall, if a female
pensioner, be paid to her minor children, and, in the case of a male
pensioner, to be paid to his wife, if living; if no wife survives him,
then to his minor children; and in case there is no wife nor minor
children, then the said unexpended balance to his or her credit shall
be applied to the general uses of said hospital: Provided further,
That in the case of pensioners transferred to the hospital from the
National Home for Disabled Volunteer Soldiers, any pension money
to his credit at said Home at the time of his said transfer shall be
transferred with him to said hospital and placed to his credit therein,
to be expended as hereinbefore provided; and in case of his return
from said hospital to the Home, any balance to his credit at said hos-
pital shall, in like manner, be transferred to said Home, to be ex-
pended in accordance with the rules established in regard thereto.
This provision shall also be applicable to all unexpended pension
money heretofore paid to the officers of the said hospital on account
of pensioners who were but are not now inmates thereof." l Act of
February W, 1905 (33 Stats., 731).
(This paragraph takes the place of paragraph 2347.)
2347b. In addition to the persons now entitled to admission to the
Government Hospital for the Insane, any inmate of the Soldiers'
Home who is now or may hereafter become insane shall, upon an
order of the president of the Board of Commissioners of the Soldiers7
Home, be admitted to said hospital and treated therein; and the
expenses of maintaining any such person shall be paid from the
Soldiers' Home fund. Act of July 7, 1884 (23 'Stats., 213).
2348a. The Secretary of War may, in his discretion, contract for
the care, maintenance, and treatment of the insane natives of the
Philippine Islands serving in the Army of the United States at any
asylum in the Philippine Islands in all cases which he is now author-
ized by law to cause to be sent to the Government Hospital for the
Insane in the District of Columbia. Act of March 2, 1907 (34 Stats.,
1173).
(See paragraphs 2340-2348.)
'Under the provisions of the Act of February 20, 1905 (33 Stats., 731), the
regulations established by the Secretary of the Interior fix the amount to be
charged to any pensioner for support in the Government Hospital for the Insane
at not to exceed $6.66 per month.
In regard to the general status of pensioners committed to the Government
Hospital for the Insane see Logue v. Penning (29 Appeal Cases. Dist. of Col.,
519-530).
1288 MILITARY LAWS OF THE UNITED STATES.
CHAPTER XLIV.
NATIONAL PARKS.
THE GETTYSBURG NATIONAL PARK.
ERECTION OF MONUMENTS.
2391a. The Gettysburg National Park Commission are authorized
and directed, under the supervision of the Secretary of War, to erect
such monuments and markers of granite and bronze upon the battle-
field of Gettysburg, in the State of Pennsylvania, as will fittingly
designate the positions, indicate the movements, and commemorate
the valorous services of the following batteries and regiments of
United States Regulars upon the battlefield: Batteries E, G, H, I,
and K, First United States Artillery ; A, B, D, G, L, and M, Second
United States Artillery ; C, F, and K, Third United States Artillery ;
A, B, C, F, G, and K, Fourth United States Artillery; C, D, F, I,
and K, Fifth United States Artillery ; Second, Third, Fourth, Sixth,
Seventh, Eighth, Tenth, Eleventh, Twelfth, Fourteenth, and Seven-
teenth Regiments of United States Infantry; First, Second, Fifth,
and Sixth Regiments of Cavalry ; and United States Engineers De-
tachment.
The Secretary of War shall, so far as practicable, procure the ap-
pointment of committees of the survivors of these regiments and
batteries, with whom the said commission shall consult, and, with the
approval of the Secretary of War, determine the designs and posi-
tions of said monuments and markers and the inscriptions they shall
bear, and for the purpose of carrying out the provisions of this act,
sixty-one thousand five hundred dollars is hereby appropriated, out
of any moneys not otherwise appropriated, and the disbursements
under this act shall be made on the approval of the Secretary of War.
Act of February 18, 1903 (32 Stats., 838).
2391b. The Act of Congress authorizing the Secretary of War to
cause to be erected monuments and markers on the battlefield of
Gettysburg, in the State of Pennsylvania, to commemorate the valor-
ous deeds of certain regiments and batteries of the United States
Army, approved the eighteenth of February, nineteen hundred and
three, be, and hereby is, amended by adding to the names of batteries
therein mentioned Battery E, Fourth United States Artillery. And
for the purpose of carrying out the provisions of said Act as hereby
amended the sum of one thousand five hundred dollars is hereby
appropriated out of any money not otherwise appropriated. Act of
March 3, 1905 (33 Stats., 980).
(This paragraph amends paragraph 2391a.)
SUPPLEMENT. 1289
THE ANTIETAM BATTLEFIELD.
2422a. For pay of superintendent of Antietam battlefield, said su-
perintendent to perform his duties under the direction of the Quar-
termaster's Department and to be selected and appointed by the
Secretary of War, at his discretion, the person selected and appointed
to this position to be an honorably discharged Union soldier, one
thousand five hundred dollars. Act of April 28, 1904 (33 Stats.,
496).
(This paragraph amends paragraph 2422.)
THE YELLOWSTONE NATIONAL PARK.
2443a. Private parties or companies doing business in the Yellow-
stone National Park under authority from the Government may be
permitted, in the discretion of the Secretary of War, to use electricity
furnished by the electric lighting and power plant of Fort Yellow-
stone and Mammoth Hot Springs at actual cost to the^ Government
for operation, maintenance, and depreciation of the plant and ten per
centum additional, under such regulations as may be prescribed by
the Secretary of War. Act of March 3, 1903 (32 Stats., 1130}.
STATUE OF LIBERTY, BEDLOES ISLAND.
2447a. The Treasurer of the United States is hereby authorized and
directed to receive the sum of thirty-five thousand dollars, more or
less, from the executive committee of the Statue of Liberty erected
on land belonging to the United States on Bedloes Island, New York
Harbor; and the Secretary of War is hereby authorized to keep the
said statue in repair, and to pay for the same from the appropriation
for " Regular supplies," under the Quartermaster's Department, in
the appropriation for the support of the Army for the fiscal year in
which such expenses shall be incurred. Act of April 28, 1904
Stats., 498).
CHAPTER XLV.
NATIONAL CEMETERIES.
INTERMENTS.
2460a. For expenses of burying in the Arlington National Ceme-
etery, or in the cemeteries of the District of Columbia, indigent ex-
Union soldiers, sailors, and marines of the late civil war and soldiers
1290 MILITARY LAWS OF THE UNITED STATES.
and sailors of the war with Spain who die in the District of Colum-
bia, or in the immediate vicinity thereof, and of such soldiers, sailors,
and marines who die in the District of Columbia and are buried in
the immediate vicinity thereof, to be disbursed by the Secretary of
War, at a cost not exceeding forty-five dollars for such burial ex-
penses in each case, exclusive of cost of grave, three thousand dollars.
Act of April 28, 1904 (33 Stats., 495).
(This paragraph amends paragraph 2460 and the note thereto.)
ROADWAYS.
2465a. No part of this sum shall be used for repairing any roadway
within the corporate limits of any city, town, or village. Act of April
28, 1904 (33 Stats., 495).
CHAPTER XLVIII.
GENERAL STAFF CORPS.
ESTABLISHMENT.
2470. There is hereby established a General Staff Corps, to be com-
posed of officers detailed from the Army at large, under such rules as
may be prescribed by the President. Sec. 1, Act of February 1!±, 1903
(32 Stats., 830}.
COMPOSITION.
2471. The General Staff Corps shall consist of one Chief of Staff
and two general officers, all to be detailed by the President from offi-
cer of the Army at large not below the grade of brigadier-general;
four colonels, six lieutenant-colonels, and twelve majors, to be detailed
from the corresponding grades in the Army at large, under such
rules for selection as the President may prescribe ; twenty captains, to
be detailed from officers of the Army at large of the grades of captain
or first lieutenant, who while so serving shall have the rank, pay, and
allowances of captain mounted. All officers detailed in the General
Staff Corps shall be detailed therein for periods of four years, unless
sooner relieved. While serving in the General Staff Corps, officers
may be temporarily assigned to duty with any branch of the Army.
Upon being relieved from duty in the General Staff Corps, officers
shall return to the branch of the Army in which they hold permanent
commission, and no officer shall be eligible to a further detail in the
General Staff Corps until he shall have served two years with the
branch of the Army in which commissioned, except in case of emer-
SUPPLEMENT. 1291
gency or in time of war. Sec. 3, Act of February lit, 1903 (32 Stats.,
831}.
DUTIES.
2472. The duties of the General Staff Corps shall be to prepare
plans for the national defense and for the mobilization of the mili-
tary forces in time of war; to investigate and report upon all ques-
tions affecting the efficiency of the Army and its state of preparation
for military operations; to render professional aid and assistance
to the Secretary of War and to general officers and other superior
commanders, and to act as their agents in informing and coordinating
the action of all the different officers who are subject under the terms
of this Act to the supervision of the Chief of Staff ; and to perform
such other military duties not otherwise assigned by law as may be
from time to time prescribed by the President. Sec. 2, Act of Feb-
ruary 14, 1903 (32 Stats., 831}.
2473. The Chief of Staff, under the direction of the President or of
the Secretary of War, under the direction of the President, shall have
supervision of all troops of the line and of the Ad jut ant- General's,
Inspector- General's, Judge- Advocate's, Quartermaster's, Subsistence,
Medical, Pay and Ordnance departments, the Corps of Engineers,
and the Signal Corps, and shall perform such other military duties
not otherwise assigned by law as may be assigned to him by the Presi-
dent. Duties now prescribed by statute for the Commanding Gen-
eral of the Army as a member of the Board of Ordnance and Forti-
fication and of the Board of Commissioners of the Soldiers' Home
shall be performed by the Chief of Staff or other officer designated
by the President. Acts and parts of Acts authorizing aids- de-camp
and military secretaries shall not apply to general officers of the
General Staff Corps. Sec. 4, Act of February 14, 1903 (32 Stats.,
831}.
CHIEF OF ARTILLERY.
2474. Section five of the Act entitled uAn Act to increase the effi-
ciency of the Army," approved February fourteenth, nineteen hun-
dred and three, is hereby amended to read as follows:
" SEC. 5. That the Chief of Artillery shall hereafter serve as an
additional member of the General Staff, and by and with the advice
and consent of the Senate shall have the rank, pay, and allowances of
a brigadier-general, and when the next vacancy occurs in the office of
colonel of artillery it shall not be filled, and thereafter the number
of colonels of artillery shall not exceed thirteen; and the provisions
of the foregoing sections of this Act shall take effect on August fif-
teenth, nineteen hundred and three." Act of March 3, 1903 (32 Stats.,
1021}.
1292 MILITABY LAWS OF THE UNITED STATES.
2474a. The Chief of Artillery or Chief of Coast Artillery shall be
an additional member of the General Staff Corps, and his other
duties shall be prescribed by the Secretary of War.
When a vacancy occurs in the office of the Chief of Artillery or
Chief of Coast Artillery the President may appoint to such vacancy,
by and with the advice and consent of the Senate, an officer selected
from the coast artillery, who shall serve for a period of four years
unless reappointed for further periods of four years ; and any officer
who shall hereafter serve as Chief of Artillery or Chief of Coast
Artillery shall, when retired, be retired with the rank, pay, and allow-
ances authorized by law for a brigadier-general on the retired list.
The position vacated by an officer appointed Chief of Artillery or
Chief of Coast Artillery shall be filled by promotion in that arm
according to existing law, but the officer thus appointed shall con-
tinue in the same lineal position in his arm which he would have held
if he had not been so appointed, and shall be an additional number in
the grade from which he was appointed or to which he may be pro-
moted: Provided, That there shall not be at any time in the coast
artillery more than one additional officer by reason of the appoint-
ment of a Chief of Artillery or Chief of Coast Artillery and the
relief of an officer from such duty. Sec. 2^ Act of January %5, 1907
(34 Stats., 861).
(This paragraph amends paragraph 2474.)
CHAPTER XLIX.
PHILIPPINE ISLANDS — ACTS OF THE PHILIPPINE COMMISSION RELATING
TO THE ARMY.
ATTORNEYS.
2475. Any officer of the United States Army designated by the
commanding general of the Division of the Philippines for such pur-
pose shall have the right to appear as attorney before any court in the
Philippine Islands in all cases in which the United States Government
shall have an interest direct or indirect. Sec. 1, Act of the Philippine
Commission of April 27, 1903 (No. 856).
PROVOST COURTS.
2476. Section 78 of said Act is hereby amended so as to read as
follows :
" SEC. 78. JURISDICTION or PROVOST COURTS OVER CIVIL AND CRIM-
INAL ACTIONS REPEALED, WITH CERTAIN EXCEPTIONS, AND ACTIONS
PENDING THEREIN TO BE TRANSFERRED. — All military orders, and all
acts conferring upon Provost Courts in the Philippine Islands juris-
diction over civil actions and criminal actions, including criminal
SUPPLEMENT. 1293
actions in admiralty, are hereby repealed, except as in this section
hereinafter provided. All civil actions now pending in the Provost
Courts are hereby transferred to the proper tribunal in which they
would have been brought under the provisions of this act, had this
act been in force at the time such actions were commenced, and the
Supreme Court and Courts of First Instance and Courts of Justices
of the Peace established by this act are authorized to try and deter-
mine the actions so transferred to them respectively from the Provost
Courts, in the same manner and with the same legal effect as though
such actions had originally been commenced in the courts created by
virtue of this act: Provided, however, that the criminal jurisdiction
of Provost Courts in any province or district exclusively under mili-
tary control shall not be affected by this act, and Provost Courts in
such provinces and districts shall have concurrent jurisdiction with
the Courts of First Instance over criminal actions in admiralty."
Sec. 2, Act of the Philippine Commission of May 16, 1902 (No. 400).
GENERAL COURTS- MARTIAL CIVILIAN WITNESSES FEES.
2477. Every person not belonging to the Army of the United States,
who, in the Philippine Islands, being duly subpoenaed to appear
therein as a witness before a general court-martial of said Army, will-
fully neglects or refuses to appear, or refuses to qualify as a witness
or to testify or produce documentary evidence which such person
may have been legally subpoenaed to produce, shall be punished by a
fine of not more than five hundred dollars, United States currency, or
imprisonment not to exceed six months, or both, at the discretion of
the court, and it shall be the duty of the proper fiscal or prosecuting
officer, on the certification of the facts to him by the general court-
martial, to file in the proper court a complaint against and prosecute
the person so offending: Provided, That one dollar and fifty cents,
United States currency, for each day's attendance, and five cents,
United States currency, per mile for going from his place of residence
to the place of trial or hearing and five cents per mile for returning,
shall be duly tendered to said witness: Provided further, That no
witness shall be compelled to incriminate himself or to answer any
question which may tend to incriminate him. Sec. 1, Act of the
Philippine Commission of April 28, 1904 (No. 1130).
HABEAS CORPUS.
2478. Nothing in this chapter shall authorize the discharge of any
person convicted of an offense or charged with an offense committed
in any other part of the Philippine Islands, or in any part of the
United. States, and who, agreeable to law, ougkt to be delivered up to
the executive power of the United States, or of any State thereof,
1294 MILITARY LAWS OF THE UNITED STATES.
where the offense is charged to have been committed ; nor of any per-
son suffering imprisonment under lawful judgment; nor shall any
writ of habeas corpus be issued against a military officer or soldier
who is detaining a prisoner in the Provinces of Batangas, La Laguna,
Tayabas, Samar, Cebii and Bohol, and in any unorganized province
or territory. It shall be a conclusive answer to a writ of habeas cor-
pus against a military officer or soldier, and a sufficient excuse for not
producing the prisoner in all other organized provinces than those
herein named, if the Commanding General or any general officer in
command of the department or district shall certify that the prisoner
is held by him either:
" 1. As a prisoner of war ; or
" 2. As a member of the Army, a civilian employe thereof, or a
camp follower and subject to its discipline ; but this paragraph shall
not apply to pending cases; or
" 3. As a prisoner committed by a military court or commission
prior to October 1, 1901 ; or
" 4. As a prisoner arrested and held for trial before a military
court or commission before October 15, 1901, for a violation of the
laws of war committed before the same date ; or
" 5. As a prisoner guilty of violations of the laws of war committed
in the unpacified provinces and territory in this section named and
who has escaped into provinces officially declared to be under civil
control and has been there captured by military authorities and is
held for trial for such violations of the laws of war."
All the other provisions of this chapter shall be subject to the limi-
tations and restrictions contained in this section. Sec. 1, Act of the
Philippine Commission of October 1, 1901 (No. 272}.
2479. So much of section one of Act Numbered Two hundred and
seventy-two, entitled "An Act amending Chapter XXVI, relating to
proceedings in habeas corpus, of Act Numbered One hundred and
ninety, providing for a code of procedure in civil actions and special
proceedings," as forbids the issuing of any writ of habeas corpus
against a military officer or soldier who is detaining a prisoner in the
Provinces of Batangas, La Laguna, Tayabas, Samar, Cebu, and
Bohol, or in any other province which has been organized under
" The Provincial Government Act," or by a special Act, or which
may be hereafter so organized, is hereby expressly repealed. Sec.
h Act of the Philippine Commission of June 23, 1902 (No. 1$!}.
JURISDICTION OVER RESERVATIONS.
2480. SECTION 1. No licenses shall be granted for the sale of or
dealing in any intoxicating liquors on any public land reserved by the
President of the United States for military purposes in the Philippine
Islands.
SUPPLEMENT. 1295
SEC. 2. The military authorities shall have the right to reject
[eject] any intruder or trespasser on any public lands reserved by the
President for military purposes in the Philippine Islands, and to
suppress open breaches of the peace and abate nuisances thereon.
SEC. 3. No branch of the Civil Government in force on or over any
public lands reserved by the President for military purposes, and no
civilian residents thereon, shall interfere with military administra-
tion or the use of such lands for military purposes.
SEC. 4. The personal property of persons employed in the military
service of the United States in the Philippine Islands and used by
them incident to said service shall be exempt from all taxation under
the laws in force in said Islands.
SEC. 5. No mining claims shall be located by any person on any
public lands reserved by the President for military purposes in the
Philippine Islands.
SEC. 6. Every person who unlawfully cuts, or aids, or is employed
in unlawfully cutting, or wantonly destroys, or procures to be wan-
tonly destroyed, any timber standing upon lands of the United States,
which in pursuance of law may be reserved or purchased for military
purposes in the Philippine Islands, or removes any other public prop-
erty, shall, upon conviction, be fined for each offense a sum not
exceeding five hundred dollars, or be imprisoned for a period not
exceeding twelve months, or both, in the discretion of the court.
SEC. 7. No arrest of any officer, soldier, or civilian employee, in
the military service of the United States on any military reservation,
camp, or barracks, shall be made except on warrant in due form in
writing and served upon the commanding officer thereof.
SEC. 8. All laws or parts of laws in force in the Philippine Islands
not inconsistent with military use of any public lands reserved by the
President for military purposes shall be in full force and effect over
said lands.
SEC. 9. The public good requiring the speedy enactment of this
bill, the passage of the same is hereby expedited in accordance with
section two of " An Act prescribing the order of procedure by the
Commission in the enactment of laws," passed September twenty-
sixth, nineteen hundred. Sees. 1 to 9, Act of the Philippine Commis-
sion of November 24, 1902 (No. 530}.
SALES OF LIQUOR.
2481. SECTION 1. No license shall be granted by a municipal coun-
cil or other municipal authority or provincial authority for the sale
of any intoxicating liquors, beer, or wine, at any place or on any prem-
ises situated within a distance of two miles of land now used or here-
after to be used by the United States for military purposes at Camp
Stotsenberg, in the municipality of Mabalacat, Province of Pampan-
1296 MILITAKY LAWS OF THE UNITED STATES.
ga ; Camp Morrison, municipality of Salomague, Province of Hocus
Sur; Camp Jossman, municipality of Guimaras, Province of Iloilo;
Camp Gregg, municipality of Bayambang, Province of Pangasinan ;
in or near the municipality of Los Banos, Province of La Laguna ; in
or near the municipality of Iligan, Province of Misamis ; in or near
the municipality of Batangas, Province of Batangas; in or near the
municipality of Legaspi, Province of Albay; in or near the munici-
pality of Sorsogon, Province of Sorsogon; in or near the munici-
pality of Santo Tomas, Province of La Laguna; at Fort William
McKinley, near San Pedro Macati, Province of Kizal; or within a
distance of one and one-half miles of land used or to be used by the
United States for military purposes at Camp Wallace, in the munici-
pality of San Fernando, Province of La Union; at Pasay barracks,
municipality of Pasay, Province of Rizal ; in or near the municipality
of Nueva Caceres, Province of Ambos Camarines ; in or near the mu-
nicipality of Lucena, Province of Tayabas; in or near the munici-
pality of Calamba, Province of La Laguna; or within a distance of
one mile of land rased by the United States for military purposes at
Santa Mesa in the city of Manila : Provided, however, That the pro-
hibitions herein provided shall not extend to the following-described
land within the prohibited areas: Land situated on the left bank of
the Pasig river within one mile of Santa Mesa in the city of Manila ;
land within a circle with a radius of five hundred and eighty yards
with a center at the middle of the road in the immediate front of the
parish church of the municipality of Batangas, Province of Batan-
gas; land within a circle with a radius of four hundred yards with
the center at the southwest corner of the prison in Albay, Province of
Albay ; land within a circle with a radius of four hundred yards with
the center at the southeast corner of the old Tribunal at Daraga, in
the Province of Albay ; land within a circle of seven hundred yards
with the center at the door of the church of San Rafael, in the town
of Legaspi, Province of Albay; land within a circle with a radius of
three hundred yards with the center at the door of the parish church
in Santo Tomas, Province of Batangas; land within a circle with a
radius of five hundred yards with the center at the center of the pub-
lic square in the town of Pasig, Province of Rizal; land within a
circle with a radius of seven hundred yards with the center at the
center of the public square in the municipality of Nueva Caceres,
Province of Ambos Camarines.
SEC. 2. Any person who shall sell, furnish or give away any intoxi-
cating liquors, wine or beer, within the boundaries prohibited in the
preceding section shall be punished for each offense by a fine not
exceeding one hundred dollars, in money of the United States, or by
imprisonment at hard labor not exceeding six months, or by both said
punishments, in the discretion of the court.
SUPPLEMENT. 1297
SEC. 3. Persons to whom licenses have heretofore been granted for
the sale of intoxicating liquors within the limits prohibited by this
Act, and whose licenses have not yet expired, shall be entitled to be
reimbursed, from the treasury into which their license fees have been
paid, such a proportion of the fees paid as the time for which the
license has yet to run bears to the whole time for which the license
was granted ; but shall be subject to all the penalties provided by law
for selling, furnishing, or giving away intoxicating liquors without a
license after this Act shall come into force.
SEC. 4. For the purpose of enforcing this Act, and for no other pur-
pose, the commanding officers of the United States troops stationed at
the places named in the first section of the law shall have the powers
of a justice of the peace, as defined by existing laws. Prosecutions
before such officers, acting as justices of the peace, shall be governed
by the provisions of General Orders Numbered Fifty-eight, Office of
the Military Governor for the Philippine Islands, dated Manila, Phil-
ippine Islands, April twenty -third, nineteen hundred, and the amend-
ments thereof, and all rights of appeals secured by such order and the
amendments thereof shall be allowed to defendants prosecuted under
this Act. Any order for arrest issued by authority of this Act may be
executed by a military officer or soldier designated for that purpose by
the officer commanding, as justice of the peace. The imprisonment
of defendants convicted under this Act shall be in the civil jail of the
province, or the city of Manila, as the case may be. All questions of
appeal shall be determined in the manner provided in said General
Orders Numbered Fifty-eight. Commanding officers, acting as jus-
tices of the peace by virtue of this section, shall not be entitled to fees
as justices of the peace for services so rendered; nor shall military
officers or soldiers making arrests or serving process be entitled to fees
for said services. All fines and costs imposed by virtue of this Act
shall be paid into the treasury of the municipality in which the offense
was committed, or into the Insular Treasury for the benefit of the city
of Manila, as the case may be.
SEC. 5. For the purpose of avoiding future misunderstandings and
of facilitating the enforcement of this Act, it shall be the duty of the
commanding officer of the United States troops stationed at each of
the places named in the first section of this Act to notify the munic-
ipal authorities of the municipalities affected hereby of the making
of a survey and the running of the line of the precincts within which,
by virtue of this Act, the licensing of saloons for the sale of intoxicat-
ing liquors is prohibited ; and it shall be the duty of such commanding
officer and of the municipal officers, after the line shall have been run,
to notify all persons then engaged in the sale of intoxicating liquors
within the prohibited territory of the operation of this Act and of
the time within which they must remove their places of business.
22924—08 82
1298 MILITAKY LAWS OF THE UNITED STATES.
SEC. 6. This Act shall take effect on the first day of May, nineteen
hundred and three, except in so far as it applies to the saloons now
licensed within the municipality of Bayambang, in the Province
of Pangasinan, and the municipality of Los Bafios, in the Province
of La Laguna, and as to the municipality of Bayambang and the
municipality of Los Baiios, this Act shall take effect six months
from the date of its passage. Sees. 1 to 6, Act of the Philippine
Commission of March 28, 1903 (No. 709).
248 la. The sale, gift, or other disposal, in the Province of Zam-
bales, to any soldier of the United States Army, Filipino Scouts ex-
cepted, or to any sailor or enlisted man of the United States Navy
or Marine Corps, of any of the so-called native wines or liquors, such
as " vino," " anisado," and " tuba," is hereby prohibited and declared
to be unlawful.
SEC. 2. Any person violating the provisions of section one of this
Act shall, upon conviction thereof, be punishable for each offense by
a fine not to exceed two hundred pesos, or by imprisonment for a
term not exceeding six months, or by both such fine and imprisonment,
in the discretion of the court. Sees. 1 and 2, Act of the Philippine
Commission of July 7, 1905 (No. 1369).
(This paragraph, in effect, amends sections 1 and 2 of paragraph 2481.)
2482. SECTION 1. Section 1 of Act Numbered Seven hundred and
nine, entitled "An Act prohibiting the traffic in intoxicating liquors
within certain distances of land used by the United States for mili-
tary purposes and at certain camps therein named," is hereby
amended by inserting after the words " for military purposes at
Santa Mesa in the city of Manila," and before the words "Provided,
however" the following words : " or within a distance of three-
quarters of a mile of land used by the United States for military pur-
poses near the town of Calbayog, in the Province of Samar."
SEC. 2. Section one of said Act Numbered Seven hundred and nine
is hereby further amended by adding at the end thereof the following
words : " and land within a circle with a radius of seven hundred
yards with the center at the middle of the road immediately in front
of the parish church at Lucena, in the Province of Tayabas." Sees.
1 and 2, Act of the Philippine Commission of May 31, 1904 (jVo.
1169).
EMINENT DOMAIN.
2483. SECTION 1. Section two hundred and forty-one of Act Num-
bered One hundred and ninety, entitled "An Act providing a code of
Erocedure in civil actions and special proceedings in the Philippine
slands," is hereby amended by adding at the end thereof the follow-
ing words :
" The words ' public use ' in this section shall include the use of land
in these islands for the construction and maintenance of military
SUPPLEMENT. 1299
posts to be occupied by United States forces stationed in the Phil-
ippine Islands, and an action in the name of and on behalf of the
Philippine Insular Government for the enforcement of the right of
eminent domain for the public use thus described may be instituted
under this section and the title acquired by the Philippine Govern-
ment in this land shall be indefeasible and, in furtherance of the use
herein described, may be by the Philippine Government, in accord-
ance with a resolution of the Philippine Commission, transferred by
a duly executed deed of the Civil Governor to the United States
forever."
SEC. 2. An action for the enforcement of the right of eminent
domain on behalf of the Government of the United States may be
instituted in the name of the Government of the United States upon
the direction of the President of the United States or the Secretary of
War, or upon the application of the Commanding General of the
United States Army, Division of the Philippines. Sees. 1 and 2, Act
of the Philippine Commission of March 5, 1903 (No. 665).
LOCUST PEST.
2484. Nothing in Act Numbered Eight hundred and seventeen, en-
titled "An Act declaring that the presence of locusts in various prov-
inces of the islands so threatens the food supply for the coming year as
to present a public emergency requiring radical action, and author-
izing and providing for the appointment of a board in each province
with full powers to call upon all able-bodied inhabitants thereof to
take united action to suppress the pest, and for other purposes," shall
require the services in the suppression of the locust pest of officers or
men of the Army or Navy of the United States, civil employees of the
United States Government, officers or employees of the Insular Gov-
ernment, or the officers or servants of conipanies or individuals en-
gaged in the business of common carriers on sea or land, or priests,
ministers of the Gospel, physicians, practicantes, druggists or prac-
ticantes de farmacia actually engaged in business, or lawyers when
actually engaged in court proceedings. Sec. 1, Act of the Philippine
Commission of August 17, 1903 (No. 834).
RESIDENCE FOR VOTING.
2485. SECTION 1. Act No. 82, entitled " The Municipal Code " is
hereby amended as follows:
*******
(c) By adding at the close of section 6 the words " Provided, that
officers, soldiers, sailors or marines of the Army or Navy of the United
States shall not be considered as having acquired legal residence
1300 MILITARY LAWS OF THE UNITED STATES.
within the meaning of this section by reason of their having been
stationed in the municipalities for the required six months."
*******
Sec. 1, Act of the Philippine Commission of November 27, 1901 (No.
80S}.
QUALIFICATIONS OF ELECTORS ELECTIONS.
2485a. The electors exercising the privilege of choosing elective
officers shall be male persons eighteen or more years of age who
have had a legal residence in the township in which they exercise the
right of suffrage for a period of six months immediately preceding
the election, and who are not citizens or subjects of any foreign
power: Provided, That officers, soldiers, sailors, or marines of the
Army or Navy of the United States shall not be considered as hav-
ing acquired legal residence within the meaning of this section by
reason of their having been stationed in the township for the required
six months. Sec. 6, Act of the Philippine Commission of September
H, 1905 (No. 1397}.
(This paragraph amends paragraph 2485.)
2485b. In no case shall there be elected or appointed to a township
office ecclesiastics; soldiers in active service; persons receiving sal-
aries from provincial, departmental, or governmental funds; those
who are delinquent in the payment of public taxes assessed after the
passage of this Act; or contractors for public works within the
province. Sec. 15, Act of Philippine Commission of September H,
1905 (No. 1397}.
2485c. The following persons shall be disqualified from voting :
(a) Any person who is delinquent in the payment of public taxes.
(b} Any person who has been deprived of the right to vote by the
sentence of a court of competent jurisdiction since August thirteenth,
eighteen hundred and ninety-eight, unless and until acquitted upon
appeal to a higher court or restored to all civil rights by amnesty or
pardon.
(c) Any person who has taken and violated the oath of allegiance
to the United States.
(d) Any person who, after April ninth, nineteen hundred and two,
has been or shall be in arms in the Philippine Islands against the
authority or sovereignty of the United States, whether such person
be an officer, soldier, or civilian.
(e) Any person who, after April ninth, nineteen hundred and two,
has made or shall make contribution of money or other valuable
thing in aid of any person or organization against the authority or
sovereignty of the United States, or who shall demand or receive
such contribution from others, or who shall make any contribution to
SUPPLEMENT. 1301
any person or organization hostile to or in arms against the authority
or sovereignty of the United States for the purpose of securing any
protection, immunity, or benefit, and who has not received the benefit
of the Amnesty Proclamation.
(/) Any person who, after April ninth, nineteen hundred and two,
has given or in any manner whatsoever shall give aid and comfort to
any person or organization in the Philippine Islands in opposition
to or in arms against the authority or sovereignty of the United
States, and who has not received the benefit of the Amnesty Proclama-
tion. Sec. 8, Act of the Philippine Commission of September H,
1905 (No. 1397).
TAXATION.
2486. SECTION 1. Section two of Act Numbered One hundred and
thirty-three, entitled "An Act to amend the Provincial Government
Act, Numbered Eighty-three," shall be amended by adding to subsec-
tion twenty-six thereunder, after the word " navy " in the eighth line
of said subsection, the following : " or a civilian employee in the per-
manent employment of the War or Navy Department of the United
States, who was not a resident of the Islands before his employment
in such service, but was brought here for the purpose of such employ-
ment," so that the said subsection shall read as follows :
" SEC. 26. There shall be collected in each province, by the provin-
cial treasurer, an annual tax of one peso or one dollar, Mexican, to be
called the cedula or registration tax, from every male person of
eighteen years of age and not more than fifty-five years of age resid-
ing in such province, whether a native of the Philippine Islands, a
citizen of the United States, or a foreigner, except a soldier, sailor, or
officer of the United States Army or Navy, or a civilian employee in
the permanent employment of the War or Navy Department of the
United States, who was not a resident of the Islands before his em-
ployment in such service, but was brought here for the purpose of
such employment, a member of a non-Christian tribe, or a foreign
consular officer exempted by treaty or international law." Sec. 1,
Act of the Philippine Commission of June 1, 1903 (No. 785).
GOVERNMENT OF THE MORO PROVINCE.
2487. SECTION 1. Section fifteen of Act Numbered Seven hundred
and eighty-seven, entitled "An Act providing for the organization
and government of the Moro Province," is hereby amended by adding
at the end thereof the following :
"Provided, however, That the legislative council shall have the
power to unite the offices of district secretary and district treasurer,
and to provide for the filling of such offices, whether united or sepa-
1302 MILITAKY LAWS OF THE UNITED STATES.
rate, by detail of Army officers without civil-service examination, in
the interest of economy in the public service. Army officers thus de-
tailed shall receive the same allowance and expenses from the provin-
cial treasury as are allowed to detailed Army officers under section
eleven of Act Numbered Seven hundred and eighty-seven." Sec. 1,
Act of the Philippine Commission of September 17, 1903 (No. 889).
GOVERNMENT OF THE MORO PROVINCE SALARIES.
2488. SEC. 11. The provincial governor shall receive an annual sal-
ary of six thousand dollars and each of the provincial officers shall
receive an annual salary of not exceeding four thousand dollars each,
in United States currency, to be fixed by the Civil Governor in the
appointment and to be approved with the appointment by the Com-
mission. The governors of the districts hereinafter authorized shall
receive not exceeding three thousand five hundred dollars annual
salary, in United States currency, to be fixed in the case of each dis-
trict by the legislative council; and the district secretaries and the
district treasurers hereinafter authorized shall each receive an annual
salary of not exceeding two thousand five hundred dollars, in United
States currency, to be fixed for each district by the legislative coun-
cil. The lieutenant-governor of Dapitan shall receive an annual sal-
ary of not exceeding two thousand dollars, in United States currency,
to be fixed by the legislative council. In case an officer of the Army
is detailed to perform the duties of provincial governor, or provincial
engineer, or a governor of a district, he shall receive an allowance
equal to twenty per centum of his current proper yearly pay as an
officer of the Army and the actual and necessary expenses incurred
while absent from his station in the performance of his necessary civil
duties.
The salaries of all officers and employees of the province and dis-
tricts shall be payable out of the revenues of the province. The sal-
aries of the officers and employees of such municipalities as may be
organized within the province shall be payable out of the treasury of
the respective municipalities. Sec. 11, Act of the Philippine Com-
mission of June 1, 1903 (No. 787}.
2489. Section eleven of said Act is hereby amended by striking out
the words " the lieutenant-governor of Dapitan shall receive an an-
nual salary of not exceeding two thousand dollars, in United States
currency, to be fixed by the legislative council " and by making the next
sentence of said section, after the words so stricken out, to read as fol-
lows : " In case an officer of the Army is detailed to perform the
duties of provincial governor or secretary or provincial engineer, or
a governor or a secretary of a district, he shall receive an allowance
equal to twenty per centum of his current proper yearly pay as an
SUPPLEMENT. 1303
officer of the Army and the actual and necessary expenses incurred
while absent from his station in the performance of his necessary
civil duties." Sec. h Act of the Philippine Commission of January
13, 1905 (No. 1283}.
(This paragraph amends paragraph 2488.)
2490. Section eleven of Act Numbered Seven hundred and eighty-
seven, entitled " An Act providing for the organization and gov-
ernment of the Moro Province," as amended by section four of Act
Numbered Twelve hundred and eighty-three, is hereby further
amended by making the last sentence of the first paragraph of said
section read as follows :
" In case officers of the Army are detailed to perform the duties
of provincial or district officials of the Moro Province they may be
paid an allowance, in the discretion of the legislative council, as
follows: Officers above the grade of colonel, not exceeding twenty
per centum, and officers of the grade of colonel and below said grade
not exceeding fifty per centum, of their current proper yearly pay as
officers of the Army, and they shall also receive the actual and neces-
sary expenses incurred while absent from their stations in the per-
formance of their necessary civil duties." Sec. 1, Act of the Phil-
ippine Commission of September #, 1905 (No. 1391).
(This paragraph amends paragraphs 2488 and 2489.)
ESTABLISHMENT OF PROVINCIAL GOVERNMENTS.
2491. A civil provincial government is hereby established for each
province of the Philippine Islands not organized under the Provin-
cial Government Act Numbered Eighty-three, except the Moro Prov-
ince. Every provincial government established under this Act shall
be a body corporate, with power to sue and be sued, to have and use
a corporate seal, to hold property, real and personal, to make con-
tracts for labor and material needed in the construction of duly au-
thorized public works, and to incur such other obligations as are
expressly authorized by law.
SEC. 2. Except as hereinafter provided, the officers of each pro-
vincial government organized under this Act shall be a provincial
governor, a provincial secretary, a provincial treasurer, a provincial
supervisor, and a provincial fiscal. No person shall be eligible for
any of these offices who is not either a citizen of the United States,
a native of the Philippine Islands, a person who has taken the oath
of allegiance to the United States and served as a member of the
Army or Navy of the United States and been honorably discharged
therefrom, or who, not being a subject or citizen of any other power
or government, may have under or by virtue of the treaty of Paris
1304 MILITAKY LAWS OF THE UNITED STATES.
acquired the political rights of a native of the Philippine Islands,
or who, having taken the oath of allegiance to the United States,
shall violate the same. Nonresidence in the province shall not ren-
der the person appointed to the office ineligible.
SEC. 3. The provincial officers shall be appointed by the Governor-
General, with the advice and consent of the Philippine Commission,
and shall hold office during his pleasure. They shall reside and have
their offices at the capital of the province. Sees. 1 to 3, Act of the
Philippine Commission of September 14, 1905 (No. 1396) .
ANNUAL TAX FOR ROADS, ETC.
2492. (a) There is hereby imposed, for the purpose of protecting,
improving, and extending the roads and trails of the province and of
constructing public works, an annual tax of two pesos on every male
inhabitant of the province over eighteen years and under sixty years
of age, except soldiers and sailors of the United States Army and
Navy, civilian employees of the military branch of the United States
Government in the Philippine Islands, consular and diplomatic rep-
resentatives and of officials of foreign powers in the Philippine
Islands, paupers, insane persons, and persons serving a sentence of
more than one year in a public prison. This tax shall be collected
by the provincial treasurer and his deputies. It shall be deemed to
be delinquent after the first da}7 of February of each year: Provided,
That the amount of taxes due and payable for the period from the
date of this Act to the first day of January, nineteen hundred and
seven, shall be two pesos: And provided further, That this amount
shall be due and payable on the first day of December, nineteen hun-
dred and five, and shall become delinquent on the first day of Janu-
ary, nineteen hundred and six: And provided further, That persons
liable to pay this tax not residents of the province prior to February
first of any year, but who enter and reside in. the province after that
date, may pay the tax within thirty days after their arrival in the
province. Sec. 19, Act of the Philippine Commission of September
14,1905 (No. 1396).
OATH OF OFFICE.
2493. Before assuming office each provincial officer shall take and
subscribe to the following oath or affirmation :
"I, , having been
appointed to the office of of the Province
of , do hereby solemnly swear (or
affirm) that I will well and truly perform all the duties of said
office; that I will faithfully account for all moneys coming into my
hands as such officer ; that I will bear true faith and allegiance to the
SUPPLEMENT. 1305
Government of the United States ; that I take this oath without any
mental reservation whatsoever. So help me God. (In case of af-
firmation the last four words shall be omitted.)"
The oaths of office may be administered to provincial officers by a
member of the Commission, the Executive Secretary, the Assistant
Executive Secretary, the governor of the province, or any United
States Army officer stationed in the province, by the judge of First
Instance within whose judicial district the said province lies, by any
notary public or justice of the peace, or by any other person duly
authorized in such case to administer oaths. Sec. 5, Act of the Phil-
ippine Commission of September 1%., 1905 (No. 1396} .
TOLL ROADS AND BRIDGES.
2494. Whenever the provincial board of any province shall decide
it to be necessary for the proper maintenance of any road or highway
within the province, it may designate any such road or highway, or
any part of any road or highway, or any bridge, which is maintained,
or intended to be built and maintained wholly by provincial funds, as
a toll road or toll bridge, and may fix, and from time to time may
change, the rates of toll to be paid for the use thereof, which shall be
reasonable and shall not be greater than is necessary to produce the
revenue requisite for the proper building, maintenance, or improve-
ment thereof during the period while the toll rates are in force. The
rates fixed shall be subject to the approval of the Governor-General :
Provided, That no toll shall be collected from persons passing over
such road or bridge on foot : And provided further, That officers and
enlisted men and civil employees of the United States Army, Navy,
and Marine Corps shall be exempt from the payment of tolls or
charges under this Act. Sec. 1, Act of the Philippine Commission of
March 20, 1907 (No. 1617).
LEAVE PRIVILEGES.
2495. The provisions of Act Numbered One thousand and forty, in
regard to all leave privileges, shall hereafter apply to Army officers
serving with the Philippines Constabulary: Provided, however,
That the provisions of said Act in regard to half pay while going to
and returning from the United States shall apply only to that por-
tion of the compensation of said officers paid from Insular funds.
Sec. 1, Act of the Philippine Commission of March 13, 1907
(No. 1607).
ACTS OF CONGRESS.
ARTICLES FREE OF DUTY.
2496. Used household furniture of persons coming to settle in the
Philippine Islands, including such articles, effects, and furnishings
1306 MILITARY LAWS OF THE UNITED STATES.
as pictures, books, pianos, organs, chinaware, and kitchen utensils,
in quantities and of the class suitable to the rank and position of
the persons bringing the same and intended for their own use and
benefit and not for barter or sale : Provided, That they have all been
used by said persons for more than one year; that they are brought
within a reasonable time after the arrival of the owners, in the
discretion of the collector of customs: And provided further, That
satisfactory evidence be produced that such persons are actually
coming to settle in the Philippine Islands; that the change of resi-
dence is bona fide, and that the privilege of free entry under this
paragraph has never been previously granted to them : And provided
further, That if such persons are coming to the Philippine Islands
from the United States and are citizens thereof, the period of one
year specified in the first proviso of this paragraph shall not be
effective. Officers of the United States Army, Navy, and Marine
Corps and religious missionaries taking stations in the islands shall
be given the same privileges granted to other persons in this article :
And provided further, That all articles of professional equipment,
wearing apparel, and household goods belonging to officers of the
United States Army, Navy, and Marine Corps, officers of the Philip-
pine government, and religious missionaries who are citizens of the
United States, imported from the United States for their personal
use and benefit and not for barter or sale, may be entered free of
duty on the personal certificate of such person that they fulfill the
above conditions: Provided, however, That United States Govern-
ment vessels, whether transports of the Army or naval vessels, when
coming from the United States or a foreign port to the ports of the
Philippine Islands, shall be subject to the same inspection by customs
officers of the Philippine government, for the purpose of determin-
ing whether they have on board articles or merchandise dutiable
under the laws of the Philippine Islands, as such United States
Government vessels are subject to by customs officers of the United
States Government when such vessels enter ports of the United
States from foreign countries for the purpose of determining
whether such vessels have on board articles or merchandise dutiable
under the laws of the United States. Sec. 12, Act of March 3, 1905
(33 Stats., 974).
TONNAGE DUES.
2497. The following shall be exempt from tonnage dues:
A vessel belonging to or employed in the service of the Government
of the United States. * * * Sec. 15, Act of March 3, 1905 (33
Stats., 976).
SUPPLEMENT. . 1307
CHAPTER L.
DISTRICT OF ALASKA.
2498. All moneys derived from and collected for liquor licenses,
occupation or trade licenses outside of the incorporated towns in
the district of Alaska shall be deposited in the Treasury Depart-
ment of the United States, there to remain as a separate and distinct
fund, to be known as the ' Alaska fund,' and to be wholly devoted to
the purposes hereinafter stated in the district of Alaska. One-fourth
of said fund, or so much thereof as may be necessary, shall be devoted
to the establishment and maintenance of public schools in said dis-
trict; five per centum of said fund shall be devoted to the care and
maintenance of insane persons in said district, or so much of said
five per centum as may be needed; and all the residue of said fund
shall be devoted to the construction and maintenance of wagon roads,
bridges, and trails in said district: And provided further, That the
clerk of the court of each judicial division of said district is author-
ized, and he is hereby directed, whenever considered necessary, to call
•upon the United States marshal of said judicial division to aid in
the collection of said license moneys by designating regular or special
deputies of his office to act as temporary license inspectors, and it
shall be the duty of said United States marshal to render such aid ;
and the said regular or special deputies, while actually engaged in the
performance of this duty, shall receive the same fees and allowances
and be paid in the same manner as when performing their regular
duties. Sec. 1, Act of May 14, 1906 (3Jf Stats., 192) ..
(This paragraph amends and takes the place of section 1 of the act of Jan-
uary 27, 1905.)
2499. There shall be a board of road commissioners in said district,
to be composed of an engineer officer of the United States Army to
be detailed and appointed by the Secretary of War, and two other
officers of that part of the Army stationed in said district and to be
designated by the Secretary of War. The said engineer officer shall,
during the term of his said detail and appointment, abide in said dis-
trict. The said board shall have the power, and it shall be their duty,
upon their own motion or upon petition, to locate, lay out, construct,
and maintain wagon roads and pack trails from any point on the
navigable waters of said district to any town, mining or other indus-
trial camp or settlement, or between any such town, camps, or settle-
ments therein, if in their judgment such roads or trails are needed
and will be of permanent value for the development of the district;
but no such road or trail shall be constructed to any town, camp, or
settlement which is wholly transitory or of no substantial value or
1308 MILITARY LAWS OF THE UNITED STATES.
importance for mining, trade, agricultural, or manufacturing pur-
poses. The said board shall prepare maps, plans, and specifications
of every road or trail they may locate and lay out, and whenever
more than twenty thousand dollars, in the aggregate, shall have to be
expended upon the actual construction of any road or section of road
designed to be permanent, contract for the work shall be let by them
to the lowest responsible bidder, upon sealed bids, after due notice,
under rules and regulations to be prescribed by the Secretary of War.
The board may reject any bid if they deem the same unreasonably
high or if they find that there is a combination among bidders. In
case no responsible and reasonable bid can be secured, then the work
may be carried on with material and men procured and hired by the
board. The engineer officer of the board shall in all cases supervise
the work of construction and see that the same is properly performed.
As soon as any road or trail laid out by the board has been constructed
and completed they shall examine the same and make a full and de-
tailed report of the work done on the same to the Secretary of War,
and in such report they shall state whether the road or trail has been
completed conformably to the maps, plans, and specifications of the
same. It shall be the duty of said board, as far as practicable,' t6
keep in proper repair all roads and trails constructed under their su-
pervision, and the same rules as to the manner in which the work of
repair shall be done, whether by contract or otherwise, shall govern as
in the case of the original construction of the road or trail. The
cost and expenses of laying out, constructing, and repairing such
roads and trails shall be paid by the Secretary of the Treasury,
through the authorized disbursing officer of the board designated by
the Secretary of War, out of the road and trail portion of said 'Alaska
fund ' upon vouchers approved and certified by said board. The
Secretary of the Treasury shall, at the end of each month, send by
mail to each of the members of said board a statement of the amount
available of said 'Alaska fund ' for the construction and repair of
roads and trails, and no greater liability for construction or repair
shall at any time be incurred by said board than the money avail-
able therefor at that time in said fund. The members of said board
shall, in addition to their salaries, be reimbursed in the sums actually
paid or incurred by them in traveling expenses in the performance
of their duties, and shall be entitled to receive their actual expenses
of living while serving as members of said board within the limits
of the district and not stationed at a military post. Sec. 2, Act of
May 14, 1906 (34 Stats., 192}.
(This paragraph amends and takes the place of section 2 of the act of Janu-
ary 27, 1905, 33 Stats., 616.)
APPENDIX A.
CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND
CERTAIN POWERS FOR THE ADAPTATION TO MARITIME WAR-
FARE OF THE PRINCIPLES OF THE GENEVA CONVENTION OF
AUGUST 22, 1864.
Signed at The Hague July 29, 1899.
Ratification advised by the Senate May 4, 1900.
Ratified by the President of the United States August 3, 1900.
Ratification deposited with the Netherlands Government September 4, 1900.
Proclaimed November 1, 1901.
BY THE PRESIDENT OF THE UNITED STATES or AMERICA.
A PROCLAMATION.
Whereas a Convention for the adaptation to Maritime Warfare of
the principles of the Geneva Convention of August 22, 1864, was con-
cluded and signed on July 29, 1899, by the Plenipotentiaries of the
United States of America, Germany, Austria-Hungary, Belgium,
China, Denmark, Spain, Mexico, France, Great Britain and Ireland,
Greece, Italy, Japan, Luxembourg, Montenegro, the Netherlands,
Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden and Nor-
way, Switzerland, Turkey, and Bulgaria, the original of which Con-
vention, in the French language, is word for word as follows :
His Majesty the Emperor of Germany, King of Prussia; His Maj-
esty the Emperor of Austria, King of Bohemia etc. and Apostolic
King of Hungary; His Majesty the King of the Belgians; His Maj-
esty the Emperor of China ; His Majesty the King of Denmark ; His
Majesty the King of Spain and in His Name Her Majesty the Queen
Regent of the Kingdom ; the President of the United States of Amer-
ica ; the President of the United Mexican States ; the President of the
French Republic ; Her Majesty the Queen of the United Kingdom of
Great Britain and Ireland, Empress of India ; His Majesty the King
of the Hellenes; His Majesty the King of Italy; His Majesty the
Emperor of Japan ; His Royal Highness the Grand Duke of Luxem-
burg, Duke of Nassau ; His Highness the Prince of Montenegro ; Her
Majesty the Queen of the Netherlands; His Imperial Majesty the
1309
1310 MILITAKY LAWS OF THE UNITED STATES.
Shah of Persia; His Majesty the King of Portugal and of the Al-
garves etc.; His Majesty the King of Roumania; His Majesty the
Emperor of all the Russias; His Majesty the King of Servia; His
Majesty the King of Siam; His Majesty the King of Sweden and
Norway; the Swiss Federal Council; His Majesty the Emperor of
the Ottomans and His Royal Highness the Prince of Bulgaria.
Alike animated by the desire to diminish, as far as depends on
them the evils inseparable from warfare, and wishing with this ob-
ject to adapt to maritime warfare the principles of the Geneva Con-
vention of the 22nd August, 1864, have decided to conclude a con-
vention to this effect:
*******
ARTICLE I.
Military hospital ships, that is to say, ships constructed or as-
signed by States specially and solely for the purpose of assisting the
wounded, sick or shipwrecked, and the names of which shall have
been communicated to the belligerent Powers at the beginning or
during the course of hostilities, and in any case before they are em-
ployed, shall be respected and cannot be captured while hostilities
last.
These ships, moreover, are not on the same footing as men-of-war
as regards their stay in a neutral port.
ARTICLE II.
Hospital ships, equipped wholly or in part at the cost of private
individuals or officially recognized relief Societies, shall likewise be
respected and exempt from capture, provided the belligerent Power
to whom they belong has given them an official commission and has
notified their names to the hostile Power at the commencement of
or during hostilities, and in any case before they are employed.
These ships should be furnished with a certificate from the compe-
tent authorities, declaring that they had been under their control
while fitting out and on final departure.
ARTICLE III.
Hospital-ships, equipped wholly or in part at the cost of private
individuals or officially recognized Societies of neutral countries,
shall be respected and exempt from capture, if the neutral Power to
whom they belong has given them an official commission and notified
their names to the belligerent powers at the commencement of or
during hostilities, and in any case before they are employed.
SUPPLEMENT. 1311
ARTICLE IV.
The ships mentioned in Articles I, II, and III shall afford relief
and assistance to the wounded, sick, and shipwrecked of the bellig-
erents independently of their nationality.
The Governments engage not to use these ships for any military
purpose.
These ships must not in any way hamper the movements of the
combatants.
During and after an engagement they will act at their own risk and
peril.
The belligerents will have the right to control and visit them ; they
can refuse to help them, order them off, make them take a certain
course, and put a Commissioner on board ; they can even detain them,
if important circumstances require it.
As far as possible the belligerents shall inscribe in the sailing papers
of the hospital-ships the orders they give them.
ARTICLE V.
The military hospital-ships shall be distinguished by being painted
white outside with a horizontal band of green about a metre and a
half in breadth.
The ships mentioned in Articles II and III shall be distinguished
by being painted white outside with a horizontal band of red about a
metre and a half in breadth.
The boats of the ships above mentioned, as also small craft which
may be used for hospital work, shall be distinguished by similar
painting.
All hospital ships shall make themselves known by hoisting,
together with their national flag, the white flag with a red cross pro-
vided by the Geneva Convention.
ARTICLE VI.
Neutral merchantmen, yachts, or vessels, having, or taking on
board, sick, wounded, or shipwrecked of the belligerents, cannot be
captured for so doing, but they are liable to capture for any violation
of neutrality they may have committed.
ARTICLE VII.
The religious, medical, or hospital staff of any captured ship is
inviolable, and its members cannot be made prisoners of war. On
leaving the ship they take with them the objects and surgical instru-
ments which are their own private property.
1312 MILITARY LAWS OF THE UNITED STATES.
This staff shall continue to discharge its duties while necessary, and
can afterwards leave when the Commander-in-Chief considers it
possible.
The belligerents must guarantee to the staff that has fallen into
their hands the enjoyment of their salaries intact.
ARTICLE VIII.
Sailors and soldiers who are taken on board when sick or wounded,
to whatever nation they belong, shall be protected and looked after
by the captors.
ARTICLE IX.
The shipwrecked, wounded, or sick of one of the belligerents who
fall into the hands of the other, are prisoners of war. The captor
must decide, according to circumstances, if it is best to keep them or
send them to a port of his own country, to a neutral port, or even to
a hostile port. In the last case, prisoners thus repatriated cannot
serve as long as the war lasts.
ARTICLE X.
(Excluded)
ARTICLE XL
The rules contained in the above Articles are binding only on the
Contracting Powers, in case of War between two or more of them.
The said rules shall cease to be binding from the time when, in n
war between the Contracting Powers, one of the belligerents is joined
by a non-Contracting Power.
ARTICLE XII.
The present Convention shall be ratified as soon as possible.
The ratifications shall be deposited at The Hague.
On the receipt of each ratification a proces-verbal shall be drawn
up, a copy of which, duly certified, shall be sent through the diplo-
matic channel to all the Contracting Powers.
ARTICLE XIII.
The non-Signatory Powers who accepted the Geneva Convention of
the 22nd August, 1864, are allowed to adhere to the present Conven-
tion.
For this purpose they must make their adhesion known to the Con-
tracting Powers by means of a written notification addressed to the
SUPPLEMENT. 1313
Netherlands Government, and by it communicated to all the other
Contracting Powers.
ARTICLE XIV.
In the event of one of the High Contracting Parties denouncing the
present Convention, such denunciation shall not take effect until # year
after the notification made in writing to the Netherlands Government,
and forthwith communicated by it to 'all the other Contracting
Powers.
This denunciation shall only affect the notifying Power.
In testimony whereof the respective Plenipotentiaries have signed
the present Convention and affixed their seals thereto.
Done at The Hague the 29th July, 1899, in single copy, which shall
be kept in the archives of the Government of the Netherlands, and
copies of which duly certified, shall.be sent through the diplomatic
channel to the Contracting Powers.
*******
And whereas on an understanding reached by the Government of
the Netherlands with the signatory powers it was agreed to exclude
from the ratifications of said Convention its Article X ;
And whereas the said Convention, with its Article X excluded, was
ratified by the Government of the United States, by and with the
advice and consent of the Senate thereof, and by the Governments
of the other Powers aforesaid, with the exception of those of China
and Turkey;
And whereas, in pursuance of the stipulations of Article XII of the
said Convention the ratifications of the said Convention were de-
posited at the Hague on the 4th. day of September, 1900, by the
Plenipotentiaries of the Governments of the United States of America,
Germany, Austria-Hungary, Belgium, Denmark, Spain, France,
Great Britain, Italy, the Netherlands, Persia, Portugal, Roumania,
Russia, Siam, Sweden and Norway and Bulgaria; on the 6th. day of
October, 1900, by the Plenipotentiary of the Government of Japan ;
on the 16th. day of October, 1900, by the Plenipotentiary of the
Government of Montenegro ; on the 29th. day of December, 1900, by
the Plenipotentiary of the Government of Switzerland; on the 4th.
day of April, 1901, by the Plenipotentiary of the Government of
Greece ; on the 17th. day of April, 1901, by the Plenipotentiary of the
Government of Mexico; on the llth. day of May, 1901, by the Pleni-
potentiary of the Government of Servia, and on the 12th. day of
July, 1901, by the Plenipotentiary of the Government of Luxembourg :
Now, therefore, be it known that I, Theodore Roosevelt, President
of the United States of America, have caused the said Convention,
with its Article X excluded, to be made public, to the end that the
22924—08 83
1314 MILITARY LAWS OF THE UNITED STATES.
same and every clause thereof, may be observed and fulfilled with
good faith by the United States and the citizens thereof,
In witness whereof, I have hereunto set my hand and caused the
seal of the United States to be affixed.
Done at the City of Washington, this first day of November in the
year of our Lord one thousand nine hundred and one, and
[L.*S.] of the Independence of the United States, the one hundred
and twenty-sixth.
THEODORE ROOSEVELT
By the President:
JOHN HAY
Secretary of State.
APPENDIX B.
CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND
CERTAIN POWERS, WITH RESPECT TO THE LAWS AND CUSTOMS
OF WAR ON 'LAND.
Signed at The Hague July 29, 1899.
Ratification advised by the Senate March 14, 1902.
Ratified by the President of the United States March 19, 1902.
Ratifications deposited with the Netherlands Government September 4,
1900.
Proclaimed April 11, 1902.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
*
A PROCLAMATION.
Whereas a Convention with respect to the laws and customs of war
on land was concluded and signed on July 29, 1899, by the Plenipo-
tentiaries of the United States of America, Germany, Austria-Hun-
gary, Belgium, Denmark, Spain, Mexico, France, Great Britain and
Ireland, Greece, Italy, Japan, Luxembourg, Montenegro, the Nether-
lands, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden
and Norway, Turkey, and Bulgaria, the original of which Conven-
tion, in the French language, is word for word as follows :
CONVENTION WITH RESPECT TO THE LAWS AND CUSTOMS OF WAR ON
LAND.
His Majesty the Emperor of Germany, King of Prussia; His Maj-
esty the Emperor of Austria, King of Bohemia etc., and Apostolic
King of Hungary; His Majesty the King of the Belgians; His Maj-
esty the King of Denmark; His Majesty the King of Spain and in
His Name Her Majesty the Queen Regent of the Kingdom ; the Presi-
dent of the United States of America; the President of the United
Mexican States ; the President of the French Republic ; Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland,
Empress of India; His Majesty the King of the Hellenes; His Maj-
1315
1316 MILITARY LAWS OF THE UNITED STATES.
esty the King of Italy; His Majesty the Emperor of Japan; His
Royal Highness the Grand Duke of Luxemburg, Duke of Nassau;
His Highness the Prince of Montenegro ; Her Majesty the Queen of
the Netherlands; His Imperial Majesty the Shah of Persia; His
Majesty the King of Portugal and of the Algarves etc.; His Majesty
the King of Roumania ; His Majesty the Emperor of all the Russias ;
His Majesty the King of Servia ; His Majesty the King of Siam ; His
Majesty the King of Sweden and Norway ; His Majesty the Emperor
of the Ottomans and His Royal Highness the Prince of Bulgaria.
Considering that, while seeking means to preserve peace and pre-
vent armed conflicts among nations, it is likewise necessary to have
regard to cases where an appeal to arms may be caused by events
which their solicitude could not avert;
Animated by the desire to serve, even in this extreme hypothesis,
the interests of humanity and the ever increasing requirements of
civilization ;
Thinking it important, with this object, to revise the laws and gen-
eral customs of war, either with the view of defining them more
precisely, or of laying down certain limits for the purpose of modi-
fying their severity as far as possible ;
Inspired by these views which are enjoined at the present day, as
they were twenty-five years ago at the time of the Brussels Confer-
ence in 1874, by a wise and generous foresight;
Have, in this spirit, adopted a great number of provisions, the
object of which is to define and govern the usages of war on land.
In view of the High Contracting Parties, these provisions, the
wording of which has been inspired by the desire to diminish the
evils of war so far as military necessities permit, are destined to
serve as general rules of conduct for belligerents in their relations
with each other and with populations.
It has not, however, been possible to agree forthwith on provisions
embracing all the circumstances which occur in practice.
On the other hand, it could not be intended by the High Contract-
ing Parties that the cases not provided for should, for want of a
written provision, be left to the arbitrary judgment of the military
Commanders.
Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not
included in the Regulations adopted by them, populations and bellig-
erents remain under the protection and empire of the principles of
international law, as they result from the usages established between
civilized nations, from the laws of humanity, and the requirements
of the public conscience;
They declare that it is in this sense especially that Articles I and
II of the Regulations adopted must be understood ;
SUPPLEMENT. 1317
The High Contracting Parties, desiring to conclude a Convention
to this effect, have appointed as their Plenipotentiaries, to-wit: —
*******
Who, after communication of their full powers, found in good and
due form, have agreed on the following : —
ARTICLE I.
The High Contracting Parties shall issue instructions to their
armed land forces, which shall be in conformity with the " Regula-
tions respecting the Laws and Customs of War on Land " annexed to
the present Convention.
ARTICLE II.
The provisions contained in the Regulations mentioned in Article I
are only binding on the Contracting Powers, in case of war between
two or more of them.
These provisions shall cease to be binding from the time when, in a
war between Contracting Powers, a non-Contracting Power joins one
of the belligerents.
ARTICLE III.
The present Convention shall be ratified as speedily as possible.
The ratifications shall be deposited at the Hague.
A proces-verbal shall be drawn up recording the receipt of each
ratification, and a copy, duly certified, shall be sent through the diplo-
matic channel, to all the Contracting Powers.
ARTICLE IV.
Non-Signatory Powers are allowed to adhere to the Present Con-
vention.
For this purpose they must make their adhesion known to the Con-
tracting Powers by means of a written notification, addressed to the
Netherland Government, and by it communicated to all the other
Contracting Powers.
ARTICLE V.
In the event of one of the High Contracting Parties denouncing
the present Convention, such denunciation would not take effect
until a year after the written notification made to the Netherland
Government, and by it at once communicated to all the other Con-
tracting Powers.
This denunciation shall affect only the notifying Power.
In faith of which the Plenipotentiaries have signed the present
Convention and affixed their seals thereto.
1318 MILITARY LAWS OF. THE UNITED STATES,
Done at the Hague the 29th July 1899, in a single copy, which
shall be kept in the archives of the Netherland Government, and
copies of which, duly certified, shall be delivered to the Contracting
Powers through the diplomatic channel.
ANNEX TO THE CONVENTION.
EEGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR
ON LAND.
SECTION I. — ON BELLIGERENTS.
CHAPTER I. — On the Qualifications of Belligerents.
ARTICLE I.
The laws, rights, and duties of war apply not only to armies, but
also to militia and volunteer corps, fulfilling the following condi-
tions :
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance ;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and
customs of war.
In countries where militia or volunteer corps constitute the army,
or form part of it, they are included under the denomination " army."
ARTICLE II.
The population of a territory which has not been occupied who, on
the enemy's approach, spontaneously take up arms to resist the invad-
ing troops without having time to organize themselves in accordance
with Article I, shall be regarded a belligerent, if they respect the laws
and customs of war.
ARTICLE III.
The armed forces of the belligerent parties may consist of com-
batants and non-combatants. In case of capture by the enemy both
have a right to be treated as prisoners of war.
CHAPTER II. — On Prisoners of War.
ARTICLE IV.
Prisoners of war are in the power of the hostile Government, but
not in that of the individuals or corps who captured them.
They must be humanely treated.
All their personal belongings, except arms, horses, and military
papers remain their property.
SUPPLEMENT. 1319
ARTICLE Y.
Prisoners of war* may be interned in a town, fortress, camp, or any
other locality, and bound not to go beyond certain fixed limits; but
they can only be confined as an indispensable measure of safety.
ARTICLE VI.
The State may utilize the labor of prisoners of war according to
their rank and aptitude. Their tasks shall not be excessive, and shall
have nothing to do with the military operations.
Prisoners may be authorized to work for the Public Service, for
private persons, or on their 'own account.
Work done for the State shall be paid for according to the tariffs
in force for soldiers of the national army employed on similar tasks.
When the work is for other branches of the Public Service or for
private persons, the conditions shall be settled in agreement with the
military authorities.
The wages of the prisoners shall go towards improving their posi-
tion, and the balance shall be paid them at the time of their release,
after deducting the cost of their maintenance.
ARTICLE VII.
i The Government into whose hands prisoners of war have fallen is
bound to maintain them.
Failing a special agreement between the belligerents, prisoners of
war shall be treated as regards food, quarters, and clothing, on the
same footing as the troops of the Government which has captured
them.
ARTICLE VIII.
Prisoners of war shall be subject to the laws, regulations, and
orders in force in the army of the State into whose hands they have
fallen.
Any act of insubordination warrants the adoption, as regards them,
of such measures of severity as may be necessary.
Escaped prisoners, recaptured before they have succeeded in rejoin-
ing their army, or before quitting the territory occupied by the army
that captured them, are liable to disciplinary punishment.
Prisoners who, after succeeding in escaping are again taken pris-
oners, are not liable to any punishment for the previous flight.
ARTICLE IX.
Every prisoner of war, if questioned, is bound to declare his true
name and rank, and if he disregards this rule, he is liable to a curtail-
ment of the advantages accorded to the prisoners of war of his class.
1320 MILITAKY LAWS OF THE UNITED STATES.
ARTICLE X.
Prisoners of war may be set at liberty on parole if the laws of their
country authorized it, and, in such a case, they are bound, on their
personal honour, scrupulously to fulfill, both as regards their own
Government and the Government by whom they were made prisoners,
the engagements they have contracted.
In such cases, their own Government shall not require of nor accept
from them any service incompatible with the parole given.
ARTICLE XI.
A prisoner of war can not be forced to accept his liberty on parole ;
similarly the hostile Government is not obliged to assent to the pris-
oner's request to be set at liberty on parole.
ARTICLE XII.
Any prisoner of war, who is liberated on parole and recaptured,
bearing arms against the Government to whom he had pledged his
honor, or against the allies of that Government, forfeits his right to
be treated as a prisoner o.f war, and can be brought before the Courts.
ARTICLE XIII.
Individuals who follow an army without directly belonging to it,
such as newspaper correspondents and reporters, sutlers, contractors,
who fall into the enemy's hands, and whom the latter think fit to
detain, have a right to be treated as prisoners of war, provided they
can produce a certificate from the military authorities of the army
they were accompanying.
ARTICLE XIV.
A Bureau for information relative to prisoners of war is instituted,
on the commencement of hostilities, in each of the belligerent States,
and, when necessary, in the neutral countries on whose territory bel-
ligerents have been received. This Bureau is intended to answer all
inquiries about prisoners of war, and is furnished by the various serv-
ices concerned with all the necessary information to enable it to. keep
an individual return for each prisoner of war. It is kept informed of
internments and changes, as well as of admissions into hospital and
deaths.
It is also the duty of the Information Bureau to receive and collect
all objects of personal use, valuables, letters, &c., found on the battle-
fields or left by prisoners who have died in hospital or ambulance, and
to transmit them to those interested.
SUPPLEMENT. 1321
ARTICLE XV.
Eelief Societies for prisoners of war, which are regularly consti-
tuted in accordance with the law of the country with the object of
serving as the intermediary for charity, shall receive from the bel-
ligerents for themselves and their duly accredited agents every facil-
ity, within the bounds of military requirements and Administrative
Regulations, for the effective accomplishment of their humane task.
Delegates of these Societies may be admitted to the places of intern-
ment for the distribution of relief, as also to the halting places of re-
patriated prisoners, if furnished with a. personal permit by the mili-
tary authorities, and on giving an engagement in writing to comply
with all their Regulations for order and police.
ARTICLE XVI.
The Information Bureau shall have the privilege of free postage.
Letters, money orders, and valuables, as well as postal parcels des-
tined for the prisoners of war or dispatched by them, shall be free
of all postal duties both in the countries of origin and destination,
as well as in those they pass through.
Gifts and relief in kind for prisoners of war shall be admitted
free of all duties of entry and others, as well as of payments for car-
riage by the Government railways.
ARTICLE XVII.
Officers taken prisoners may receive, if necessary, the full pay
allowed them in this position by their country's regulations, the
amount to be repaid by their Government.
ARTICLE XVIII.
Prisoners of war shall enjoy every latitude in the exercise of their
religion, including attendance at their own church services, provided
only they comply with the regulations for order and police issued by
the military authorities.
ARTICLE XIX.
The wills of prisoners of war are received or drawn up on the same
conditions as for soldiers of the National Army.
The same rules shall be observed regarding death certificates, as
well as for the burial of prisoners of war, due regard being paid to
their grade and rank.
1322 MILITARY LAWS OF THE UNITED STATES.
ARTICLE XX.
After the conclusion of peace, the repatriation of prisoners of war
shall take place as speedily as possible.
CHAPTER III. — On the Sick and Wounded.
ARTICLE XXI.
The obligations of belligerents with regard to the sick and wounded
are governed by the Geneva Convention of the 22nd August, 1864.
subject to any modifications which may be introduced into it.
SECTION II. — ON HOSTILITIES.
CHAPTER I. — On means of injuring the Enemy, Sieges, and Bom-
bardments.
ARTICLE XXII.
The right of belligerents to adopt means of injuring the enemy is
not unlimited.
ARTICLE XXIII.
Besides the prohibitions provided by special Conventions, it is
especially prohibited :—
(a.) To employ poison or poisoned arms;
(b.) To kill or wound treacherously individuals belonging to the
hostile nation or army;
(c.) To kill or wound an enemy who, having laid down arms, or
having no longer means of defence, has surrendered at discretion ;
(d.) To declare that no quarter will be given ;
(e.) To employ arms, projectiles, or material of a nature to cause
superfluous injury;
(f.) To make improper use of a flag of truce, the national flag, or
military ensigns and the enemy's uniform, as well as the distinctive
badges of the Geneva Convention;
(g.) To destroy or seize the enemy's property, unless such destruc-
tion or seizure be imperatively demanded by the necessities of war.
ARTICLE XXIV.
Ruses of war and the employment of methods necessary to obtain
information about the enemy and the country, are considered allow-
able.
ARTICLE XXV.
The attack or bombardment of towns, villages, habitations or build-
ings which are not defended, is» prohibited.
SUPPLEMENT. 1323
ARTICLE XXVI.
The Commander of an attacking force, before commencing a bom-
bardment, except in the case of an assault, should do all he can to
warn the authorities.
ARTICLE XXVII.
In sieges and bombardments all necessary steps should be taken to
spare as far as possible edifices devoted to religion, art, science, and
charity, hospitals, and places where the sick and wounded are col-
lected, provided they are not used at the same time for military
purposes.
The besieged should indicate these buildings .or places by some par-
ticular and visible signs, which should previously be notified to the
assailants.
ARTICLE XXVIII.
The pillage of a town or place, even when taken by assault, is pro-
hibited.
CHAPTER II. — On Spies.
ARTICLE XXIX.
An individual can only be considered a spy if, acting clandestinely,
or on false pretences, he obtains, or seeks to obtain information in the
zone of operations of a belligerent, with the intention of communicat-
ing it to the hostile party.
Thus, soldiers not in disguise who have penetrated into the zone of
operations of a hostile army to obtain information are not considered
spies. Similarly, the following are not considered spies: soldiers or
civilians, carrying out their'mission openly, charged with the delivery
of despatches destined either for their own army or for that of the
enemy. To this class belong likewise individuals sent in balloons to
deliver despatches, and generally to maintain communication between
the various parts of an army or a territory.
ARTICLE XXX.
A spy taken in the act cannot be punished without previous trial.
ARTICLE XXXI.
A spy who, after rejoining the army to which he belongs, is subse-
quently captured by the enemy, is treated as a prisoner of war, and
incurs no responsibility for his previous acts of espionage.
1324 MILITARY LAWS OF THE UNITED STATES.
CHAPTER III. — On Flags of Truce.
ARTICLE XXXII.
An individual is considered as bearing a flag of truce who is author-
ized by one of the belligerents to enter into communication with the
other, and who carries a white flag. He has a right to inviolability,
as well as the trumpeter, bugler, or drummer, the flag-bearer, and the
interpreter who may accompany him.
ARTICLE XXXIII.
The Chief to whom a flag of truce is sent is not obliged to receive
it in all circumstances."
He can take all steps necessary to prevent the envoy taking advan-
tage of his mission to obtain information.
In case of abuse, he has the right to detain the envoy temporarily.
ARTICLE XXXIV,
The envoy loses his rights of inviolability if it is proved beyond
doubt that he has taken advantage of his privileged position to pro-
voke or commit an act of treachery.
CHAPTER IV. — On Capitulations.
ARTICLE XXXV.
Capitulations agreed on between the Contracting Parties must be in
accordance with the rules of military honour.
When once settled, they must be scrupulously observed by both the
parties.
CHAPTER V. — On Armistices.
ARTICLE XXXVI.
An armistice suspends military operations by mutual agreement
between the belligerent parties. If its duration is not fixed, the bel-
ligerent parties can resume operations at any time, provided always
the enemy is warned within the time agreed upon, in accordance with
the terms of the armistice.
ARTICLE XXXVII.
An armistice may be general or local. The first suspends all mili-
tary operations of the belligerent States; the second, only those be-
tween certain fractions of the belligerent armies and in a fixed radius.
SUPPLEMENT. 1325
ARTICLE XXXVIII.
An armistice must be notified officially, and in good time, to the
competent authorities and the troops. Hostilities are suspended
immediately after the notification, or at a fixed date.
ARTICLE XXXIX.
It is for the Contracting Parties to settle, in the terms of the armis-
tice, what communications may be held, on the theatre of war, with
the population and with each other.
ARTICLE XL.
Any serious violation of the armistice by one of the parties gives
the other party the right to denounce it, and even, in case of urgency,
to recommence hostilities at once.
ARTICLE XLI.
A violation of the terms of the armistice by private individuals
acting on their own initiative, only confers the right of demanding
the punishment of the offenders, and, if necessary, indemnity for the
losses sustained.
SECTION III. — ON MILITARY AUTHORITY OVER HOSTILE TERRI-
TORY.
ARTICLE XLII.
Territory is considered occupied when it is actually placed under
the authority of the hostile army.
The occupation applies only to the territory where such authority is
established, and in a position to assert itself.
ARTICLE XLIII.
The authority of the legitimate power having actually passed into
the hands of the occupant, the latter shall take all steps in his power
to re-establish and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the
country.
ARTICLE XLIV.
Any compulsion of the population of occupied territory to -take
part in military operations against its own country is prohibited.
1326 MILITARY LAWS OF THE UNITED STATES.
ARTICLE XLV.
Any pressure on the population of occupied territory to take the
oath to the hostile Power is prohibited.
ARTICLE XLV I.
Family honour and rights, individual lives and private property,
as well as religious convictions and liberty, must be respected.
Private property cannot be confiscated.
ARTICLE XLVIL
Pillage is formally prohibited.
ARTICLE XL VIII.
If, in the territory occupied, the occupant collects the taxes, dues,
and 'tolls imposed for the benefit of the State, he shall do it, as far as
possible, in accordance with the rules in existence and the assessment
in force, and will in consequence be bound to defray the expenses of
the administration of the occupied territory on the same scale as that
by which the legitimate Government was bound.
ARTICLE XLIX.
If, besides the taxes mentioned in the preceding Article, the occu-
pant levies other money taxes in the occupied territory, this can only
be for military necessities or the administration of such territory.
ARTICLE L.
No general penalty, pecuniary or otherwise, can be inflicted on the
population on account of the acts of individuals for which it can not
be regarded as collectively responsible.
ARTICLE LI.
No tax shall be collected except under a written order and on the
responsibility of a Cominander-in-Chief.
This collection shall only take place, as far as possible, in accord-
ance with the rules in existence and the assessment of taxes in force.
For every payment a receipt shall be given to the taxpayer.
SUPPLEMENT. 1327
ARTICLE LII.
Neither requisition in kind nor services can be demanded from
communes or inhabitants except for the necessities of the army of
occupation. They must be in proportion to the resources of the
country, and of such a nature as not to involve the population in the
obligation of taking part in military operations against their country.
These requisitions and services shall only be demanded on the
authority of the Commander in the locality occupied.
The contributions in kind shall, as far as possible, be paid for in
ready money ; if not, their receipt shall be acknowledged.
ARTICLE LIU.
An army of occupation can only take possession of the cash, funds,
and property liable to requisition belonging strictly to the State, de-
pots of arms, means of transport, stores and supplies, and, generally,
all movable property of the State which may be used for military
operations.
Eailway plant, land telegraphs, telephones, steamers, and other
ships, apart from cases governed by maritime law, as well as depots
of arms and, generally, all kinds of war material, even though be-
longing to Companies or to private persons, are likewise material
which may serve for military operations, but they must be restored at
the conclusion of peace, and indemnities paid for them.
ARTICLE LIV.
The plant of railways coming from neutral States, whether the
property of those States, or of Companies, or of private persons, shall
be sent back to them as soon as possible.
ARTICLE LV.
The occupying State shall only be regarded as administrator and
usufructuary of the public buildings, real property, forests, and agri-
cultural works belonging to the hostile State, and situated in the
occupied country. It must protect the capital of these properties,
and administer it according to the rules of usufruct.
ARTICLE LVI.
The property of the communes, that of religious, charitable, and
educational institutions, and those of arts and science, even when
State property, shall be treated as private property.
1328 MILITABY LAWS OF THE UNITED STATES.
All seizure of, and destruction, or intentional damage done to such
institutions, to historical monuments, works of art or science, is pro-
hibited, and should be made the subject of proceedings.
SECTION IV. — ON THE INTERNMENT OF BELLIGERENTS AND THE CARE
OF THE WOUNDED IN NEUTRAL COUNTRIES.
ARTICLE LVIL.
A neutral State which receives in its territory troops belonging to
the belligerent armies shall intern them, as far as possible, at a dis-
tance from the theatre of war.
It can keep them in camps, and even confine them in fortresses or
locations assigned for this purpose.
It shall decide whether officers may be left at liberty on giving
their parole that they will not leave the neutral territory without
authorization.
ARTICLE LVIII.
Failing a special Convention, the neutral State shall supply the
interned with the food, clothing, and relief required by humanity.
At the conclusion of peace, the expenses caused by the internment
shall be made good.
ARTICLE LIX.
A neutral State may authorize the passage through its territory of
wounded or sick belonging to the Belligerent armies, on condition
that the trains bringing them shall carry neithei* combatants nor war
material. In such a case, the neutral State is bound to adopt such
measures of safety and control as may be necessary for the purpose.
Wounded and sick brought under these conditions into neutral ter-
ritory by one of the belligerents, and belonging to the hostile party,
must be guarded by the neutral State,, so as to insure their not taking
part again in the military operations. The same duty shall devolve
on the neutral State with regard to wounded or sick of the other
army who may be committed to its care.
ARTICLE LX.
The Geneva Convention applies to sick and wounded interned in
neutral territory.
tf * * * * * *
And whereas the said Convention was duly ratified by the Govern-
ment of the United States of America, by and with the advice and
consent of the Senate thereof, and by the Governments of the other
SUPPLEMENT. 1329
Powers aforesaid with the exception of Sweden and Norway and
Turkey ;
And whereas, in pursuance of the stipulations of Article III of the
said Convention the ratifications of the said Convention were depos-
ited at The Hague on the 4th day of September, 1900, by the Pleni-
potentiaries of the Governments of Germany, Austria -Hungary,
Belgium, Denmark, Spain, France, Great Britain. Italy, the Nether-
lands, Persia, Portugal, Roumania., Russia, Siam, and Bulgaria; on
the 6th day of October, 1900, by the Plenipotentiary of the Govern-
ment of Japan ; on the 16th day of October, 1900, by the Plenipoten-
tiary of the Government of Montenegro ; on the 4th day of April,
1901, by the Plenipotentiary of the Government of Greece; on the
17th day of April, 1901, by the Plenipotentiary of the Government
of Mexico; on the llth day of May, 1901, by the Plenipotentiary of
the Government of Servia; on the 12th day of July, 1901, by the
Plenipotentiary of the Government of Luxembourg; and on the 5th
day of April, 1902, by the Plenipotentiary of the Government of the
United States of America:
Now, therefore, be it known that I, Theodore Roosevelt, President
of the United States of America, have caused the said Convention to
be made public, to the end that the same and every clause thereof may
be observed and fulfilled with good faith by the United States and
the citizens thereof.
In witness whereof, I have hereunto set my hand and caused the
seal of the United States to be affixed.
Done at the City of Washington this eleventh day of April, in the
year of our Lord one thousand nine hundred and two, and of
[SEAL] the Independence of the United States the one hundred and
twenty-sixth.
THEODORE ROOSEVELT
By the President :
DAVID J. HILL,
Acting Secretary of State.
22924—08 84
APPENDIX C.
THE AMERICAN NATIONAL BED CROSS.
Whereas on the twenty-second of August, eighteen hundred and
sixty-four, at Geneva, Switzerland, plenipotentiaries respectively rep-
resenting Italy, Baden, Belgium, Denmark, Spain, Portugal, France,
Prussia, Saxony, and Wurttemberg and the Federal Council of
Switzerland agreed upon ten articles of a treaty or convention for
the purpose of mitigating the evils inseparable from war; of amel-
iorating the condition of soldiers wounded on the field of battle, and
particularly providing, among other things, in effect, that persons
employed in hospitals and in according relief to the sick and wounded
and supplies for this purpose shall be deemed neutral and entitled to
protection ; and- that a distinctive and uniform flag shall be adopted
for hospitals and ambulances and convoys of sick and wounded and
an arm badge for individuals neutralized ; and
Whereas said treaty has been ratified by all of said nations, and by
others subsequently, to the number of forty-three or more, including
the United States of America ; and
Whereas the International Conference of Geneva of eighteen hun-
dred and sixty-three recommended " that there exist in every country
a committee whose mission consists in cooperating in times of war
with the hospital service of the armies by all means in its power;"
and
Whereas a permanent organization is an agency needed in every
nation to carry out the purposes of said treaty, and especially to
secure supplies and to execute the humane objects contemplated by
said treaty, with the power to adopt and use the distinctive flag and
arm badge specified by said treaty in article seven, on which shall be
the sign of the Red Cross, for the purpose of cooperating with the
" Comite International de Secours aux Militaires Blesses" (Inter-
national Committee of Relief for the Wounded in War) ; and
Whereas in accordance with the requirements and customs of said
international body such an association adopting and using said in-
signia was formed in the city of Washington, District of Columbia,
in July, eighteen hundred and eighty-one, known as " The American
1330
SUPPLEMENT. 1331
National Association of the Red Cross," reincorporated April seven-
teenth, eighteen hundred and ninety-three, under the laws of the
District of Columbia, and reincorporated by Act of Congress in
June, nineteen hundred ; and
Whereas it is believed that the importance of the work demands a
repeal of the present charter and a reincorporation of the society
under Government supervision : Now, therefore,
Be it enacted ~by the Senate and House of Representatives of the
United States of America in Congress assembled, That Clara Barton,
Hilary A. Herbert, Thomas F. Walsh, Charles C. Glover, Charles J.
Bell, Mabel T. Boardman, George Dewey, William R. Day, Nelson A.
Miles, James Tanner, William K. Van Reypen, John M. Wilson,
Simon Wolf, James R. Garfield, Gifford Pinchot, S. W. Woodward,
Mary A. Logan, Walter Wyman, of Washington, District of Colum-
bia ; George H. Shields, of Missouri ; William H. Taf t, F. B. Loomis,
Samuel Mather, of Ohio ; Spencer Trask, Robert C. Ogden, Cleveland
H. Dodge, George C. Boldt, William T. Wardwell, John G. Carlisle,
George B. McClellan, Elizabeth Mills Reid, Margaret Carnegie, of
New York; John H. Converse, Alexander Mackay- Smith, J. Wilkes
O'Neill, H. Kirke Porter, of Pennsylvania; Richard Olney, W.
Murray Crane, Henry L. Higginson, William Draper, Frederick H.
Gillett, of Massachusetts; Marshall Field, Robert T. Lincoln, Lam-
bert Tree, of Illinois ; A. G. Kaufman, of South Carolina ; Alexander
W. Terrell, of Texas; George Gray, of Delaware; Redfield Proctor,
of Vermont ; John W. Foster, Noble C. Butler, Robert W. Miers, of
Indiana; John Sharp Williams, of Mississippi; William Alden
Smith, of Michigan; Horace Davis, W. W. Morrow, of California;
Daniel C. Gilman, Eugene Lovering, of Maryland ; J. Taylor Ellyson,
of Virginia ; Daniel R. Noyes, of Minnesota ; Emanuel Fiske, Mar-
shall Fiske, of Connecticut, together with five other persons to be
named by the President of the United States, one to be chosen from
each of the Departments of State, War, Navy, Treasury, and Justice,
their associates and successors, are hereby created a body corporate
and politic in the District of Columbia.
SEC. 2. That the name of this corporation shall be " The American
National Red Cross," and by that name shall have perpetual suc-
cession, with the power to sue and be sued in courts of law and equity
within the jurisdiction of the United States; to have and to hold such
real and personal estate as shall be deemed advisable and to accept
bequests for the purposes of this corporation hereinafter set forth ; to
adopt a seal and the same to alter and destroy at pleasure; and to
have the right to have. and to use, in carrying out its purposes herein-
after designated, as an emblem and badge, a Greek red cross on a
white ground, as the same has been described in the treaty of Geneva,
August twenty-second, eighteen hundred and sixty- four, and adopted
1332 MILITAKY LAWS OF THE UNITED STATES.
by the several nations acceding thereto ; to ordain and establish by-
laws and regulations not inconsistent with the laws of the United
States of America or any State thereof, and generally to do all such
acts and things (including the establishment of regulations for the
election of associates and successors) as may be necessary to carry
into effect the provisions of this Act and promote the purposes of said
organization; and the corporation hereby created is designated as
the organization which is authorized to act in matters of relief under
said treaty. In accordance with article seven of the treaty, the
delivery of the brassard allowed for individuals neutralized in time
of war shall be left to military authority.
SEC. 3. That the purposes of this corporation are and shall be —
First. To furnish volunteer aid to the sick and wounded of armies
in time of war, in accordai^e with the spirit and conditions of the
conference of Geneva of October, eighteen hundred and sixty-three,
and also of the treaty of the Red Cross, or the treaty of Geneva, of
August twenty-second, eighteen hundred and sixty-four, to which
the United States of America gave its adhesion on March first, eight-
een hundred and eighty-two.
Second. And for said purposes to perform all the duties devolved
upon a national society by each nation which has acceded to said
treaty.
Third. To succeed to all the rights and property which have been
hitherto held and to all the duties which have heretofore been per-
formed by the American National Red Cross as a corporation duly
incorporated by Act of Congress June sixth, nineteen hundred, which
Act is hereby repealed and the organization created thereby is here-
by dissolved.
Fourth. To act in matters of voluntary relief and in accord with
the military and naval authorities as a medium of communication
between the people of the United States of America and their Army
and Navy, and to act in such matters between similar national so-
cieties of other governments through the " Comite International de
Secours," and the Government and the people and the Army and
Navy of the United States of America.
Fifth. And to continue and carry on a system of national and
international relief in time of peace and apply the same in mitigat-
ing the sufferings caused by pestilence, famine, fire, floods, and other
great national calamities, and to devise and carry on measures for
preventing the same.
SEC. 4. That from and after the passage of this Act it shall be
unlawful for any person within the jurisdiction of the United States
to falsely and fraudulently hold himself out as, or represent or pre-
tend himself to be, a member of, or an agent for, the American
National Red Cross, for the purpose of soliciting, collecting, or re-
SUPPLEMENT. 1333
ceiving money or material ; or for any person to wear or display the
sign of the Red Cross, or any insignia colored in imitation thereof
for the fraudulent purpose of inducing the belief that he is a member
of, or an agent for, the American National Red Cross. Nor shall it
be lawful for any person or corporation, other than the Red Cross of
America, not now lawfully entitled to use the sign of the Red Cross,
hereafter to use such sign or any insignia colored in imitation thereof
for the purposes of trade or as an advertisement to induce the sale of
any article whatsoever. If any person violates the provisions of this
section, he shall be guilty of a misdemeanor and shall be liable to a
fine of not less than one nor more than five hundred dollars, or im-
prisonment for a term not exceeding one year, or both, for each and
every offense. The fine so collected shall be paid to the American
National Red Cross.
SEC. 5. That the governing body of the said American National
Red Cross shall consist, in the first instance, of a central committee
numbering eighteen persons, to be appointed in the manner following,
namely: Six by the incorporators herein named and twelve by the
President of the United States, one of whom shall be designated by
the President to act as chairman. It shall be the duty of the central
committee to organize with as little delay as possible State and Terri-
torial societies, including the District of Columbia, under such rules
as the said committee may prescribe. When six or more State or Ter-
ritorial societies have been formed, thereafter the central committee
shall be composed as follows : Six to be appointed by the incorpora-
tors, six by the representatives of the State and Territorial societies
at the annual meeting of the incorporators and societies, and six by
the President of the United States, one of whom shall be designated
by him as chairman and one each to be named by him from the
Departments of State, War, Navy, Treasury, and Justice.
The first six members of the central committee elected by the incor-
porators at the first annual meeting, and the first six members of the
central committee elected by the State and Territorial delegates, shall
when elected select by lot from their number two members to serve
one year, two members to serve two years, and two members to serve
three years, and each subsequent election of members shall be for a
period of three years or until their successors are duly elected and
qualify. The six members of the central committee appointed by the
President at the annual meeting shall serve for one year.
The President shall fill as soon as may be any vacancy that may
occur by death, resignation, or otherwise in the chairmanship or in
the membership of the central committee appointed by him. And
any vacancy that may occur in the six members of the central commit-
tee herein provided to be appointed by the incorporators or in the six
to be appointed by the representatives of the State societies shall be
1334 MILITARY LAWS OF THE UNITED STATES.
filled by temporary appointments to be made by the remaining mem-
bers of the six in which the vacancy or vacancies may occur, such
appointees to serve until the next annual meeting.
The central committee shall have power to appoint from its own
members an executive committee of seven persons, five of whom shall
be a quorum, who, when the central committee is not in session, shall
have and exercise all the powers of the central committee.
The Secretary of War shall within thirty days after the passage of
this Act call a meeting at a time and place to be designated by him in
the city of Washington of the incorporators hereunder, giving at
least thirty days' notice thereof in one or more newspapers, and the
annual meeting of said incorporators, their associates and successors,
shall thereafter be held in said city on the first Tuesday after the first
Monday in December, the first of said meetings to be held in Decem-
ber, nineteen hundred and five. Fifteen members shall constitute a
quorum at any annual or special meeting.
Voting by proxy shall not be allowed at any meeting of the incor-
porators, annual or special, nor at any meeting of State or Territorial
societies organized under the provisions of this charter.
SEC. 6. That the said American National Red Cross shall on the
first day of January of each year make and transmit to the Secretary
of War a report of its proceedings for the preceding year, including a
full, complete, and itemized report of receipts, and expenditures of
whatever kind, which report shall be duly audited by the War De-
partment, and a copy of said report shall be transmitted to Congress
by the War Department.
SEC. 7. That Congress shall have the right to repeal, alter, or amend
this Act at any time. Act of January 5, 1905 (33 Stats., 599).
(This act takes the place of the act of June 6, 1900, 31 Stats., 277. See pages
1044 to 1047 herein.)
INDEX.
[The references are to paragraphs unless pages are indicated. Articles of War are indi-
cated by their numbers, the letters A. W. following the number of the article.]
Absence, 828a, 1287a. (See Leaves of ab-
sence.)
Accountability (see Accounts) :
property. 1742a.
Accountant, 847a. (See Expert Accountant.)
Accounting Officers (see Accounts, Disburs-
ing Officers, and Treasury Depart-
ment ) :
allowances for losses, 605a.
army appropriation, disbursement of, etc.,
801a, 801d.
closing of accounts, 605b.
disbursement of army appropriation, 801a,
801d.
limitation of accounts, 605b.
paymasters' accounts, 801c, 801e.
Accounts (see Disbursing Officers, Account-
ing Officers, and Treasury Depart-
ment ) :
allowances for losses, G05a.
appropriations for Army, 801a, 801d.
disbursing officer, 605a, 605b.
limitation of, 605b.
militia, 1693a.
paymasters, 801 c, 801e.
recorded by Paymaster-General, 801c.
Acquisition of Lands:
historic, 1614b.
Acting Assistant Surgeon, 1417a. (See Sur-
geons and Contract Surgeons.)
Acts of the Philippine Commission, 2475-
2488.
Adjutant-General's Department (see Military
Secretary's Department] :
consolation of, with Record and Pen-
sion Office, 663a.
reestablishment of, 663d.
Alaska:
"Alaska fund," 2498, 2499.
bridges, 2498.
collection of license fees, 2498.
extension, etc., military telegraph system,
1233a.
insane persons, 2498.
liquor licenses, money collected for, 2498.
military, telegraph, and cable lines, esti-
mates for extension of, 1233a.
public schools, 2498.
road commissioners, 2499.
sea travel, 841a.
telegraph and cable lines, 1233a.
wagon roads, bridges, etc., 2498, 2499.
Aliens. (See Citizenship and Naturaliza-
tion.)
Allowances :
assistant to Chief of Insular Bureau,
141d.
cadets, 1485a.
chaplains, 1258a.
militia, 1662a, 1663a, 1693a.
officers detailed with Philippine Constab-
ulary, 1332a.
Porto Rican Regiment, 505b.
Ammunition :
morning and evening gun, 1184a.
Amusement Booms. (See Post Exchange.)
Annual compensation. (See Pay.)
Antietam Battlefield:
superintendent, 2422a.
Antiquities, 1614a-1614d. (See Ruins, and
Monuments.)
Appointments :
age limit, Regular Army, 1270a.
Volunteer Army, 522a.
Chief of Bureau of Insular Affairs, 141c.
extending beyond date of retirement,
577a.
Judge - Advocate - General's Department,
694a.
Military Secretary's Department, 663a.
Porto Rican Regiment, 505b.
reappointments, 505b.
Regular Army, age limit, 1270a. '
second lieutenants, 1270a.
Signal Corps, 1218a, 1219a, 1222a.
Volunteer Army, 522a.
age limit, 522a.
Apportionment :
appropriations, 272a.
militia, 1670a.
Appropriations :
allotments, 272a.
amusement rooms, 715a.
apportionment, 272a.
army, how disbursed, etc., 801a.
not available for militia, 1662b.
available for two years, 279a.
burial of indigent soldiers, 2460a.
contract not to exceed, 272a, 272b.
contract surgeons, 907a.
deficiencies, 272a.
District of Columbia Militia, 1770a.
dredges, 1103a.
emergencies, 272a.
1335
1336
INDEX.
Appropriations — Continued,
expenditures in excess of, 272a, 272b.
fortifications, 1086a, 1086b.
general or indirect expenses, Ordnance
Department, 1201c.
gymnasium, 715a.
libraries, 715a.
lunch rooms, 715a.
medals and trophies, 1201a.
Military Secretary's Office, 663c.
militia, 801b, 1662b, 1692a, 1700a, 1700b,
1700c.
District of Columbia, 1770a.
mileage allowances, 801b.
not available for, 1662b.
payments to, 801b.
miscellaneous, 801a.
morning and evening gun, 1184a.
National Sanitarium, Hot Springs, S.
Dak., 939a, 939b.
" Ordnance stores, ammunition," etc.,
279a.
Panama Canal Zone, 1085k
paymasters' accounts, 801c.
post exchange, 715a.
post schools, 715a.
reading rooms, 715a.
restrictions on, 715a.
river and harbor works, 1103a.
schools, 715a, 1514a, 1515a, 1515b, 1519a.
skilled draftsmen, 116la.
State Soldiers' Homes, 2321 a, 2324a.
superintendent of Antietam battlefield,
2422a.
Arlington National Cemetery:
burial of indigent soldiers in, 2460a.
Armament. (See Militia.)
Arms. (See Militia.)
Army (see Regular Army, and Volunteer
Army) :
acts of Philippine Commission, 2475-2488.
annual compensation, monthly payments,
635a, 635b.
appointments in Regular, 1270a.
appointments in Volunteer, 522a.
appropriation acts, monthly payments,
635a, 635b.
appropriation, how disbursed and ac-
counted for, 801d.
appropriation not available for militia,
1662b.
artillery reorganization, 1443b-1443k.
chaplains, 1258a, 1258b, 1258c.
chief of telegraph and cipher bureau,
1219a.
civilian employees, medical supplies for,
934a.
clothing balances, 753a.
Coast Artillery, 1443b-1443h.
computing time for retirement, 1379a.
continuous-service pay, 869a.
contract surgeons, 913a.
Corps of Engineers, 953a.
deposit fund, 879a.
details to colleges, 1290a, 1291a.
electricians, 1443a.
examinations, 522a.
Army — Continued,
extra-duty pay, 745a, 1510a.
Field Artillery, 1443b-1443e, 1443i-1443k.
forage, 741b.
fuel, 740a.
Hospital Corps, composition, 914a.
organization, 924a.
pay, 919a.
leaves of absence, credit for volunteer
service, 1287a.
Lieutenant-General, office to cease, 555a.
longevity pay, retired officers, 824a, 824b.
material for tests, etc., 1215a.
medals, contests for, 1201a.
medical stores, purchase of, 932a.
medical supplies, 934a.
militia, appropriation not available for,
1662b.
open-market purchases, 1169a, 1230a.
Ordnance Department, pay of employees,
1192a.
payments to, 801a.
Philippine Islands (see Philippine Is-
lands) :
acts of Congress relating to, 2496.
attorneys, 2475.
civilian witness, 2477.
courts-martial, 2477.
details to civil office, 2487-2490.
elections, 2485a-2485c.
government of Moro Province, 2487-
2490.
insane, 2348a.
leave privileges, 2495.
leaves of officers serving with constab-
ulary, 2495.
legal residence, 2485.
locust pest, 2484.
Moro Province, .government of, 2487-
2490.
oath of office, 2493.
persons disqualified from voting, 2485c.
provincial officers, 2491.
provost courts, 2476.
public lands, 2480.
qualifications of electors, 2485a-2485c.
registration tax, 2486.
restrictions on election or appointment
to office, 2485b.
right of eminent domain, 2483^
sale of liquors, 2481, 2481a, 2482.
tariff duties, 2112a, 2496, 2497.
tax for roads, etc., 2492.
toll roads and bridges, 2494.
witness fees, 2477.
post commissary-sergeants, 762a.
post quartermaster-sergeants, 707a.
retired enlisted men, 1379a.
retired officers, longevity pay, 824a, 824b.
retirement of enlisted men, 1381a.
schools, 714a, 1514a, 1515a, 1515b,
1519a.
Signal Corps, appointments, 1218a,
1219a, 1222a.
details, 1222a.
enlisted men, 1224a, 1224b.
promotions, 1222a.
INDEX.
1337
Army — Continued.
transfer of officers of line, 141e.
transportation in time of war, 720a.
troops in time of war, 720a.
trophies, contests for, 1201a.
volunteer service, credit for, on leaves of
absence, 1287a.
War College, 1514a.
Army and Navy Union:
may wear distinctive badge, 1362a.
Army War College, 1514a. (See Schools.)
Arrest :
on reservations, Philippine Islands, 2480.
Articles of War:
militia subject to, 1671a.
Artillery Corps:
coast artillery, 1443b-1443h.
electrician sergeants, 1443a.
field artillery, 1443b-1443e, 1443i-1443k.
master electricians, 1443a.
number of colonels limited, 2473.
promotion, 1443c, 1443d.
reorganization, 1443b-1443k.
vacancies, filling of, 1443d.
Artillery School, 1519a.
Assignments (see Details) :
civil employees at headquarters of divi-
sions, etc., 573b.
coast artillery, 1443c.
contract surgeons, pay of, 909a.
dental surgeons, pay of, 909a.
field artillery, 1443c.
General Staff Corps, 2472.
militia, 1662e.
paymasters' clerks, 801e.
pay of commissioned officers, 811a, 909a.
Attorneys :
Philippine Islands, 2475.
Attorney-General (see Habeas Corpus) :
habeas corpus in Philippine Islands, 361a.
Badges (see Decorations, Medals of Honor,
and Trophies) :
Army and Navy Union, 1362a.
Chinese relief expedition, 1363a.
penalty for improper use of, 1363b.
Bakers :
prizes, 714a.
Bands :
cavalry, 1424a.
Military Academy, 1508a.
Barracks (see Fortifications and Posts) :
artillery troops, 1086a.
restrictions on expenditures, 1086a.
Bedding:
gratuitous issues, 750a.
Blanks :
manifold, etc., 68a.
Board :
commissioner of Soldiers' Eome, 2263a,
2347a, 2347b.
engineers, 1098^.
hygienic laboratory, 910b.
Board of Engineers:
composition, 1098a.
duties, 1098a.
Board of Engineers — Continued.
officers for Volunteer Army, 522a.
river and harbor works, 1098a, 1103a.
Board of Ordnance and Fortifications:
material for tests, etc., 1215a.
Bond-Aided Railroads, 843a, 844a.
Bonds :
disbursing officer of militia, 1693a.
Books :
binding, cost of, 68c.
illustrations, 68f.
manifold processes, 68a.
military attaches, 58a.
military information division, 58a.
printing, cost of, 68c.
restrictions on, 68b.
purchases of, 58a.
Bridges :
Alaska, 2498.
amendments, etc., of act, 1117e.
changes, 1115a.
draws, etc., 1115a.
lawful structures and post routes, 1114a.
lights, etc., 1115a.
litigation, 1114f, 1115b.
obstructions to navigation, 1115a.
penalties, 1115b.
" persons " defined, 1117d, 1119b.
Philippine Islands, 2494.
Porto Rico, time limit, 1119c.
telegraph and telephone rights, 1114a.
time limit, 1117c, 1119c.
tolls, 1115a.
use of, by other companies, 1117b.
Buildings :
permits, District of Columbia, 980a.
Burial (see Deceased Officers and Soldiers,
and Funeral Expenses) :
deceased pensioners, 2136a.
indigent soldiers, 2460a.
officers, 141 7a.
transportation of remains, 1416a, 1417a,
1418a.
Cadets (see Military Academy) :
allowances, 1485a.
appointments, 1479a.
date of admission, 1480b.
pay, 1485a.
promotion to Corps of Engineers, 953a.
traveling expenses of candidates, 1480a.
California Debris Commission:
expenses, lOGla.
favorable decision within thirty days,
1061a.
hydraulic mining, 1061a.
- mileage, 1081a.
order directing methods of mining, 1061a.
taxes on gross proceeds, 1061a.
Canal Zone at Panama (see Panama Canal
Zone, and Isthmian Canal Commis-
sion) :
alien labor, eight-hour law not applicable
to, 1085m, 1085n, 1573a, 1573b.
articles, etc., imported from, 1085k.
1338
INDEX.
Canal Zone at Panama — Continued.
eight-hour law, 1085m, 1085n, 1573a,
1573b.
entry of persons into United States from,
1085k.
imports from, 1085k.
purchase of, etc., 1085b.
tariff laws, 1085k.
Canals (see Isthmian Canal, Navigable
Waters, and River and Harbor
Works) :
regulations for use of, 1113a, 1117a.
enforcement of, 1117a.
Carriages :
restrictions on, lOOa, lOOb.
Caralry Band, 1424a.
Chaplains:
coast artillery, 1258c.
Corps of Engineers, 1258b.
field artillery, 1258c.
pay, 1258a, 1258c.
promotions, limitations on, 1258a.
rank, 1258a, 1258c.
special distinction for efficiency, 1258a.
uniform, 1258a.
Checks:
duplicate, 631a.
lost, etc., 631a.
Chief of Artillery:
additional member of General Staff
Corps, 2474a.
rank, pay, etc., upon retirement, 2474a.
vacancies, how filled, 2474a.
Chief of Bureau of Insular Affairs:
appointment, rank, pay, etc., 141c.
assistant to, 141d.
Chief of Coast Artillery:
additional member of General Staff
Corps, 2474a.
rank, pay, etc., upon retirement, 2474a.
vacancies, how filled, 2474a.
Chief of Engineers:
Board of Engineers, 1098a.
river and harbor works, 1098a, 1103a.
Chief of Ordnance:
indirect expenses, method of charging,
1201c.
skilled draftsman, 1161a.
Chief of Staff:
civilian details prohibited, 573b.
Chief of Telegraph and Cipher Bureau, 1219a.
(See Signal Corps.)
Citizenship (see Naturalization) :
anarchists, etc., forbidden, 1892b.
cancellation of certificate of, 1892e.
certificate of, cancellation of, 1892f.
certificates of, penalty for issuing false,
1892g.
children born abroad, 1871a, 1889a.
enlistment of Porto Ricang, 505a.
expatriation, 1877a.
married women, 1872a.
minors, 1871a, 1880b, 1889a.
naturalization, 1892a.
naturalized citizens residing abroad,
1877a.
passports, 1879a.
Citizenship— Continued,
penalty for issuing false certificates of,
1892g.
polygamists, etc., forbidden, 1892b.
residence abroad of naturalized persons,
1877a.
time of war, 1877a.
Civilians :
assignments office of Chief of Staff,
573b.
details, office of Chief of Staff, 573b.
office of General Staff, 573a.
employees of Army, medical supplies,
934a.
employees of Army, transportation of re-
mains, 1418a.
enlistment of, in Porto Rico, 505a, 505b.
physicians, 909b.
witnesses on courts-martial, Philippine
Islands, 2477.
Civil War:
honorable discharge, effect of, 2201a,
2201b.
Clerks and Messengers at Headquarters:
assignment of, to duty in War Depart-
ment, 573b.
number, 572a.
pay, 572a.
Clerks, Executive Department:
details, lla, 28a.
headquarters, 572a.
incapacitated, restriction, 31a.
Ordnance Department, 1192a.
pay, 572a, 635a, 635b, 1192a.
transfers, 28b.
Clothing:
balances, 753a.
destroyed to prevent disease, 950b.
donations to prisoners, 1788b.
gratuitous issues, 750a.
Clubs, Rifle, 1700e, 1700f. (See Militia, and
Rifle Clubs.)
Coast Artillery:
additional pay, 1443e.
assignments, 1443c.
bands, 1443g.
chaplains, 1258c.
chief of, 1443b.
composition of companies, 1443h.
corps, 1443h.
corps, to constitute, 1443g.
duties, 1443f.
electricians, etc., additional pay of, 1443e.
maximum number, 1443e.
pay of, 1443g.
enlisted strength, 1443h.
noncommissioned staff officers, pay of,
1443e.
number of officers, 1443g.
organization, 1443g.
promotion, 1443c, 1443d.
reorganization, 1443b.
separation from field artillery, 1443c.
vacancies, filling of, 1443d.
Coast Artillery Corps:
composition of, 1443h.
INDEX.
1339
Colleges (see Details, and Retired Officers) :
issues of ordnance and ordnance stores to,
1292a, 1292b.
officers, commutation of quarters, 830a.
details, 1290a, 1291 a.
extra duty pay, 1291a.
ordnance, etc., issues to, 1292a.
Command :
militia, 1662a.
Commercial Intercourse, 2112b.
Commissioned Officers :
additional, to Signal Corps, 1218a, 1219a.
appointments extending beyond date of re-
tirement, 577a.
appointments in Volunteer Army, 522a.
assignments of pay, 81 la, 909a.
assignments to militia, 1062e.
assistant to Chief of Insular Bureau, 141d.
deceased officers, 1416a, 1417a.
details extending beyond date of retire-
ment, 577a.
of officers of line, 14 le.
to civil offices in Philippine Islands,
2487, 2488.
to colleges, 1290a, 1291a.
to Philippine Constabulary, 1332a.
horses, purchase of, 74 la.
Military Secretary's Department, 663a,
663b.
militia, assignments to, 1662e.
mounted, purchase of horses from, 741a.
pay of retired officers assigned to active
duty, 1303b.
retired, assignment to active duty, 1303a.
details to colleges, 1290a, 1291a.
details to militia, 1323a.
increase of rank and pay, 1303a.
sales of fuel to, 740a.
service of generals before retirement,
1299a.
Signal Corps, additional to, 1218a, 1219a.
transfers of, 141e, 81 la, 909a.
transportation of remains, 1416a, 1417a.
Volunteer Army, 522a.
Commutation of Quarters:
militia officers, 1663a.
officers of Regular Army, 830a.
Congress of Navigation, 141a.
Contingent Expenses :
military attaches abroad, 58a.
military information division, 58a.
newspapers, 58a.
periodicals, 58a.
Continuous Service (see Pay) :
enlisted men as commissioned officers of
volunteers, 869a.
Philippine Scouts, 869a, 869b.
Porto Rican Regiment, officers of, 869a.
Contract Surgeons (see Surgeons) :
appropriations, 907a.
'assignment of pay, 909a.
burial expenses, 1417a.
dental surgeons, assignment of pay by,
909a.
hospitals in charge of, 913a.
pay, assignment of, 909a.
Contract Surgeons — Continued.
sea travel, 841a.
transfer of pay, 909a.
transportation of remains" of, 1417a.
Contracts :
Isthmian Canal, 1085d, 1085e.
labor and material, protection of, 1576a.
not to exceed appropriation, 272a, 272b.
Cooks :
prizes, 714a.
Signal Corps, 1224b.
Corps of Engineers (see Engineer Corps, En-
gineer Department, and Chief of En-
gineers) :
chaplains, 1258b.
composition, 953a.
details, 1098a.
enlisted force, 953a.
organization, 953aN.
public buildings and grounds, 978a, 978b.
rank, 953a.
vacancies, 953a.
Washington Monument, 990a.
Courts-Martial :
civilian witnesses, Philippine Islands,
2477.
militia, 1672a.
witness fees, Philippine Islands, 2477.
Dams:
damages to private property, 1114d.
flshways, 1114d.
forfeiture of rights, 1114e.
lights, signals, etc., 1114d.
penalties, 1114f.
" persons " defined, 11141.
regulations for construction of, 1114b.
removal of, 1114f.
rights forfeited, 1114e.
rights reserved for navigation, 1114c.
right to alter, etc., reserved, 1114h.
time limit, 1114g.
Debris Commission, 1061a, 1081a. (See Cali-
fornia Debris Commission;)
Deceased Officers and Soldiers (see Burial) :
accounts, settlement of, 1415a.
funeral expenses, 1415a.
transportation of remains, 1416a, 1417a,
1418a.
Decorations, 1356a, 1356b. (See Badges,
Medals, and Medals of Honor.)
Deeds:
acknowledgment of, 1599d.
Dental Surgeons:
assignment of pay, 909a.
Military Academy, 908a.
number authorized, 908a.
sea travel, 84 la.
Department of Commerce and Labor, 1028b.
Department of Justice (see Attorney-Gen-
eral) :
habeas corpus, Philippine Islands, 361a.
Departments. (See Executive Departments.)
Depositories (see Treasury, Public Moneys,
and Philippine Islands) :
in Philippine Islands, 290a.
1340
INDEX.
Deposits :
enlisted men, 879a.
funds for stores tranferred to Insular
Department, 607a.
savings of enlisted men, 879a.
Deserters (see Prisoners, and Reward) :
apprehension, 1409a.
reward, 1409a.
Details (see Army, Appointments, Commis-
sioned Officers, and Enlisted Men) :
assistant to chief of Insular Bureau,
141d.
civil employees, lla, 28a, 28b.
divisions, departments, and office of
Chief of Staff, 573b.
General Staff, 573a.
office in Philippine Islands, 2487-
2490.
colleges, 1290a, 1291a.
Corps of Engineers, 1098a.
dental surgeon to Military Academy,
908a.
extending beyond date of retirement,
577a.
General Staff dorps, 2470, 2472.
Military Secretary's Department, 663a.
militia, 1662d, 1662e.
noncommissioned officers, 1290a, 1291a.
officers, as chief, etc., Philippine Constab-
ulary, 1332a.
officers in Ordnance Department, 1155a.
officers of the line, 141e.
Ordnance Department, 1155b.
paymasters' clerks, 801e.
Porto Rican Regiment, 505b.
retired officers, 1290a, 1291a, 1323a.
with organized militia, 1323a.
river and harbor works, 1103a.
Signal Corps, 1222a.
Disbursing Officers (see Accounts, Account-
ing Officers, and Treasury Depart-
ment) :
accounts, closing of, 605b.
limitation of, 605b.
of payments to Army, 801c, 801d.
recorded by Paymaster-General, 801c.
allowances for losses, 605a.
annual compensation, 635a, 635b.
army appropriation, how disbursed, etc.,
801a, 801d.
check, duplicate, 631a.
lost, etc., 631a.
closing of accounts, 605b.
credits for payments and for losses, 605a.
limitation of accounts, 605b.
lost check, 631a.
militia, I693a.
pay of the Army, disbursement of, etc.,
801a.
paymasters' accounts, 801c.
payments of small amounts, 768a.
small purchases, 768a.
Discharge. (See Pensions.)
Discharge Certificate:
duplicate, in lieu of lost or destroyed,
1388a.
Discharged Soldiers:
transportation of remains of, 1418a.
District of Columbia:
acknowledgment of deeds, etc., ir>99d.
building permits, 980a.
public buildings and grounds, 978a, 978b.
District of Columbia Militia (see Militia, and
Naval Battalion) :
adjutant-general, 1664a.
apportionment, 1691b.
appropriation, 1691b, 1770a.
camp expenses, 1770a.
deductions of pay, 1742a, 1750a.
expense, 1770a.
minimum quota required, 1691b.
National Gu-ard, 1742a, 1750a, 1770a.
naval battalion, 1781a.
pay, deductions from, 1742a, 1750a.
property lost or destroyed, 1696a, 1742a.
sale of unserviceable property, 1696a.
unserviceable property, 1696a.
Documents :
binding, cost of, 68c.
extra copies, 68d.
illustrations, etc., 68f.
printing, cost of, 68c.
restrictions on, 68b.
Donations to Prisoners, 1788a, 1788b.
Draftsmen :
office of Chief of Ordnance, 1161a.
Signal office, 1224c.
Duplicating Processes, 68a.
Duties :
Philippine Islands, 2112a.
Eight-Dour Law:
alien labor within Canal Zone, 1085m,
1085n, 1573a, 1573b.
Canal Zone, 1085m, 1085n, 1573a, 1573b.
Electric Plants:
sale of surplus light and power, 719a.
use of proceeds, 719a.
Electricians, 1224b, 1443a. (See Signal
Corps. )
Eminent Domain, 2483.
Employees :
transportation of remains of, 1418a.
Employment of Military Force:
commercial intercourse during hostilities,
2112b.
extradition, 2093a, 2093b.
restriction on employment of, 2103a.
tariff duties and taxes, 2112a.
Engineer Corps (see Chief of Engineers,
Bridges, Dams, and Engineer Depart-
ment) :
composition, 953a.
Engineer Department:
board of engineers, 1098a.
bridges over navigable waters, 1114a,
canals, etc., regulations for use of, 1113at
1117a.
dams, 1114b, 1114c, 1114d, 1114e, 1114f,
dredges, 1103a.
fortifications, 1086a, 1086b.
INDEX.
1341
Engineer Department — Continued.
Isthmian Canal Commission, 1085a.
Light-House Board, 1028a.
Niagara Falls, 1150a, 1150b, 1150c, 1150d.
Panama Canal Zone, 1085b.
river and harbor works, 1098a, 1103a,
1106a, 1113a, 1117a.
sale of public lands, 1106a.
of unserviceable property, 1106a.-
telegraph and telephone lines, 1114a.
transfer of property, 1106a.
Engineer School, 1515a, 1515b.
Enlisted Men (see Enlistments, and Reen-
listments) :
commissioned officers, service as, 869a.
continuous service, 869a, 869b.
deceased, accounts of, 1415a.
deposit of savings, 879a.
details to colleges, 1290a, 1291a.
electricians, 1224b, 1443a.
extra-duty pay, 745a, 1510a.
funeral expenses, 1415a.
gunners, additional pay, 862a.
Hospital Corps, composition, 914a.
pay, 919a.
ice, 769a.
issues of rations, 769a.
medical attendance, 909b.
pay and allowances, 505b, 862a, 919a.
Porto Rican Regiment, 505b.
prizes, 714a.
rations, 769a.
remains of honorably discharged, 1418a.
retired, details to colleges, 1290a, 1291a.
extra-duty, pay, 1291a.
increase of rank and pay, 1303a.
retirement, 869a, 1381a.
service as commissioned officer, 869a.
Signal Corps, 1224a, 1224b.
transportation of remains of, 1416a-1418a.
Enlistments (see Enlisted Men, and Reen-
listments) :
civilian physicians, 909b.
Porto Rico Regiment, 505a, 505b.
Envelopes, 68e.
Epidemics :
clothing, etc., destroyed, 950b.
Equipments. (See Militia.)
Estimates :
Book of, 64a.
changes to be noted, 64a.
duplicating processes, etc., 68a.
employees of signal office, 1224c.
extension of cable, etc., in Alaska, 1233a.
Isthmian Canal, 1085c.
manner of preparing, 64a.
preceding year a guide, 64a.
printing and binding, 68e.
restrictions on special, 64a.
skilled draftsmen, etc., signal office, 1224c.
Examinations:
Ordnance Department, 1155a, 1155b.
officers for Volunteer Army, 522a.
Porto Rican Regiment, 505b.
Volunteer Army, officers for, 522a.
Executive Departments:
annual statement to Congress, 75a.
books, cost of printing and binding, 68c.
books, restrictions on printing, 68b.
carriages, restrictions on, lOOa, lOOb.
civil employees, lla, 28a, 28b, 31a.
details of, lla, 28a, 28b.
. incapacitated, 31a.
transfer of, 28b.
clerks and messengers, lla, 28a, 28b, 31a,
572a.
details of civil employees, lla, 28a, 28b.
documents, cost of printing and binding,
68c.
extra copies, 68d.
illustrations, 68f.
restrictions on printing, 68b.
duplicating processes, etc., 68a.
estimates, 64a, 68e.
proceeds of public property, 75a.
reports, cost of printing and binding, 68c.
extra copies, 68d.
illustrations, 68f.
statement to Congress, 75a.
transfers, 28b.
Executive Office:
chief of telegraph and cipher bureau,
1219a.
Expenses:
militia, encampments and maneuvers,
1692b.
Expert Accountant:
Inspector-General's Department, 847a.
sea travel, 847a.
travel allowances, 847a.
Expert Riflemen:
additional pay, 865a, 865b.
Extortion, 1566a.
Extra-Duty Pay, 1291a. (See Pay.)
Extradition, 2093a, 2093b, 2093c.
Fees:
civilian witnesses, 2477.
justices of the peace, 2481.
Field Artillery:
additional pay, 1443e.
assignments, 1443c.
batteries, increase in strength of, 1443k.
chaplains, 1258c.
composition of batteries, 1443k.
denned, 14431.
detail of officers, 1443J.
electricians, etc., additional pay of, 1443e.
maximum number, 1443e.
gunners, additional pay, 862a.
increase of mounted orderlies, 1443J.
of, in strength of batteries, 1443k.
limit to enlisted strength, 1443k.
noncommissioned staff officers, pay of,
1443e.
organization, 1443J.
promotion, 1443c, 1443d.
regimental strength, increase of, 1443j.
reorganization, 1443b.
separation from coast artillery, 1443c.
vacancies, filling of, 1443d.
1342
INDEX.
Field Officer:
Porto Rican Regiment, 505b.
Filing Devices, 68a. (See Estimates.)
Forage, 74 Ib.
Fort Bayard, N. Mex.:
hospital at, admission to, 939c.
rules governing, 931a.
Fortifications :
advertisements, 1086b.
artillery troops, 1086a.
contracts, 1086b.
material for experiments and tests, 1215a.
method for charging indirect expenses,
1201c.
purchase of sites, 1086a.
restrictions on expenditures, 1086a.
skilled draftsmen, etc., signal office,
1224c.
Forms :
duplicating processes, etc., 68a.
Fuel:
sales to officers, 740a.
Funds:
credits for deductions from carriers for
loss, etc., of stores, 1178a, 1640a.
depositories of public moneys, 290a.
from stores transferred to Insular De-
partment, 607a.
Funeral Expenses (see Burial) :
deceased pensioner, 2136a.
indigent soldiers, 2460a.
officers, 1417a.
Furloughs :
medical treatment, 933a.
General Courts-Martial (see Courts-Martial) :
civilian witnesses, Philippine Islands,
2477.
General Officers:
Lieutenant-General, 555a.
General Service and Staff College, 1519a. (See
Schools. )
General Staff:
civilian details prohibited, 573a.
General Staff Corps:
aids-de-camp, 2474.
assignments, temporary, 2471.
captains, rank, pay, etc., 2471.
Chief of Artillery, an additional member
of, 2474a.
rank, pay, etc., '2474.
upon retirement, 2474a.
to serve on, 2474.
Chief of Coast Artillery, rank, pay, etc.,
upon retirement, 2474a.
Chief of Staff, duties of, 2473.
composition, 2471.
details, 2471.
duties, 2472-2474.
establishment, 2470.
lieutenants, rank, pay, etc., 2471.
military secretaries, 2473.
organization, 2470.
pay and allowances, 2471, 2474.
rank, pay, and allowances, 2471, 2474.
temporary assignments, 2471.
terms of service, 2471.
Gettysburg National Park:
monuments, 2391a, 2391b.
Good Conduct Allowances (see Penitentiary) :
United States prisoners, 1837a, 1837b,
1837c.
Government Agents:
official misconduct, 1566a.
Government Hospital for the Insane:
admissions, 2347a, 2347b, 2348a.
insane natives of Philippine Islands in
Army, 2348a.
insane soldiers, pensions of, 2347a, 2347a,
note, 2347b.
pension of soldier inmates, 2347a, 2347a,
note, 2347b.
Grand Army of the Republic:
penalty for improper use of badge of,
1363b.
Gratuitous Issues :
clothing to prisoners, 1788b.
bedding, etc., 750a.
Gunners :
additional pay, 862a.
Gymnasium, 715a.
Habeas Corpus:
Philippine Islands, 361ar 2478, 2479.
Hague Convention:
laws and customs of war on land, Ap-
pendix B, pages 1315-1329.
maritime warfare, Appendix A, pages
1309-1314.
Hawaii :
public lands, 1625a.
sea travel, 841a.
Heads of Departments :
appointments extending beyond date of
retirement, 577a.
details extending beyond date of retire-
ment, 577a.
Heat, 740b.
Historic Ruins, 1614a-1614d. (See Ruins.)
Homesteads, 1587a.
Honorably Discharged Soldiers:
homestead rights, 1587a.
transportation of remains of, 1418a.
Horses :
forage, 74 Ib.
open-market purchases, 732a.
purchase of, from officers, 741a.
Hospital Corps:
composition, 914a.
corporals, 914a, 919a.
organization, 924a.
pay, 919a.
privates, 914a, 919a.
rank, 919a.
sergeants, 914a, 919a.
Hospitals (see Hospital Corps, Government
Hospital -for the Insane, and Medical
Department) :
contract surgeons, 913a.
Fort Bayard, N. Mex., 931a, 939c.
furloughs, 93 3a.
private, 933a.
sales of medical supplies, 935a.
Hot Springs, S. Dak.:
national sanitarium at, 939a, 939b.
INDEX,
1343
Hygienic Laboratory:
advisory board, 910b.
Ice:
issues of, 769a.
Ice Machines:
disposal of surplus products, etc., 719a.
Illustrations, 68f.
Indian Wars (see Pensions) :
pension for service in, 2167a, 2167b.
Infantry :
Porto Rican Regiment, 505b.
Insane, 2347a, 2347b, 2348a, 2498. (See
Government Hospital for the Insane.)
Inspections :
militia 1662c.
report of, 1693a.
Inspector-General's Department :
expert accountant, 847a.
Insular Affairs (see Insular Affairs, Bureau
of; Insular Department, and Insular
Possessions):
Acts of Philippine Commission, 2475-2488.
Insular Affairs, Bureau of (see Insular Af-
fairs, Insular Department, and Insu-
lar Possessions) :
assistant to Chief of, 141d.
business assigned to, 141b.
chief of, appointment, rank, pay, etc., of,
141c.
detail of officer as chief of, 141b.
pay of chief of, 141b.
rank of chief of, 141b.
Insular Department (see Insular Affairs, Bu-
reau of, and Insular Possessions) :
military stores transferred to, 607a.
Insular Possessions (see Insular Affairs, Bu-
reau of) :
commercial intercourse during hostilities,
2112b.
extradition, Philippine Islands, 2093a,
2093b.
tariff duties and taxes, 2112a.
International Commission, 141a.
Issues :
rations, etc., 769a.
ice, etc., 769a.
clothing, 750a, 1788b.
Isthmian Canal:
alien labor, eight-hour law not applicable
to, 1085m, 1085n, 1573a, 1573b.
annual reports, 1085f.
appropriations, limitations on, 1085g.
restrictions on, 1085f.
bonds, 1085c, 1085d, 1085e.
contracts, 1085g, 1085h.
detail of officers and employees away
from Isthmus, 1085L
eight-hour law, 1085m, 1085n, 1573a,
1573b.
estimates, 1085f.
expenditures, 1085d.
material restricted to domestic produc-
tion, 1085J.
pay while detailed away from Isthmus,
1085i.
reports, 1085f.
Isthmian Canal Commission, 1085a, 1085b.
(See Isthmian Canal and Panama Ca-
nal Zone.)
Judge-Advocate General's Department:
appointments, age limit, 694a.
vacancies, how filled, 694a.
Jurisdiction :
reservations in Philippine Islands, 2480.
Justice of the Peace, Philippine Islands, 2481.
Labor and Material:
protection to persons furnishing, 1576a.
Land and Submarine Mines, 1515b.
Land-Grant Railroads, 843a, 844a.
Lands (see Public Lands) :
condemnation proceedings, 1106b.
Hawaii, 1625a.
historic, acquisition of, 1614b.
regulations concerning, 1614d.
reserving, 1614b.
Philippine Islands, laws concerning,
2480.
public 1599a, 1599b, 1599c, 2480.
right of eminent domain, 2483.
sale of, 1106a.
Laundries :
outside work permitted, 719a.
use of proceeds, 719a.
Laws of War, 2112a, 2112b.
Leaves of Absence:
change of station, 840b.
credit for volunteer service in computing,
1287a.
mileage on change of station, 840b.
officers serving with Philippine Constab-
ulary, 2495.
Philippine Islands, 828a.
Libraries :
engineer school, 1515b.
post libraries, 71 5a.
Lieutenant-General :
office to cease, 555a.
Light, 740b.
Light-House Board (see Department 9f Com-
merce and Labor) :
transfer to Department of Commerce and
Labor, 1028a.
Liquors :
moneys collected for licenses in Alaska,
2498.
sale of, in Philippine Islands, 2481,
2481a, 2482.
on reservations, Philippine Islands,
2480.
prohibited at State soldiers' homes,
2324a.
Loans :
ordnance, etc., to State schools, etc.,
1292a, 1292b.
Locusts, Extermination of, 2484.
Longevity Pay (see Pay, and Retired Offi-
cers) :
retired officers, 824a, 824b.
Manifold Processes, 68a.
Marine Corps:
computing time for retirement, 1379a.
contests for medals, etc., 1201a, 1201b.
1344
INDEX.
Marine Corps — Continued,
medals and troophies, contests for, 1201a.
pay, retired enlisted men, 1379a.
retired enlisted men, 1379a.
Master Electricians, 1224b, 1443a. (See Sig-
nal Corps.)
Materials:
domestic preferred, 1085J.
protection to persons furnishing, 1576a.
Medals:
contests for, 1201a, 1201b.
surrendered medals of honor to be re-
turned, 1356c.
Medals of Honor, 1356a, 1356b, 1356c. (See
Medals, Decorations, and Badges.)
Medical Department (see Surgeon-General of
the Army, and Surgeons) :
bedding, etc., destroyed, 950b.
civilian employees, 934a.
civilian physicians, 909b.
contagious diseases, 950b.
contract surgeons, 9O7a, 909a, 913a.
assignment of pay, 909a.
dental surgeons, assignment of pay,
909a.
epidemics, 950b.
furloughs, 933a.
Hospital Corps, compensation, 914a.
organizations, 924a.
pay, 919a.
rank, 919a.
medical supplies for civilian employees of
Army, 934a.
medical treatment, exceptions, 933a.
purchases, 932a.
sales of medical supplies, 935a.
services not personal, 932a.
stores, purchases of, 932a.
Mexican War Pensions, 2166a, 2151a, 2151b,
2151c.
Mileage (see Travel Allowances) :
California Debris Commission, lOSla.
change of station, 840b.
deductions from, 843a.
expert accountant, 847a.
militia, 801b.
officers traveling without troops, 840a.
paymasters' clerks, 847a.
transportation requests, 843a.
Military Academy (see Cadets) :
academic staff, 1471a.
associate professors, 1458a, 1471a.
band, 1508a.
cadets, appointments, 1479a.
date of admission, 1480b.
expenses of candidates, 1480a.
pay and allowances, 1458b.
civilian instructors In French, 1458b.
in Spanish, 1458b.
dental surgeon, 908a.
organization, 1458a, 1458b.
professors, 1458a, 1458c, 1471a.
rank. 1471a.
Military Attached, 58a.
Military Establishment (see Volunteers, and
\'nlunt<'t-r .\rniii) :
organization of volunteer forces, 518a.
Military Force:
restriction on employment of, 2103a.
Military Information Division:
Manila branch, purchase of books, etc.,
58a.
Military Occupation, 2112a, 2112b.
Military Order of the Loyal Legion:
penalty for improper use of badge of,
1363b.
Military Posts:
restrictions on establishment of, 734a,
1621a.
Military Prisoners (see Prisoners) :
donation of clothing to, 1788b.
of money to, 1788a.
reward for apprehension of escaped, 1409a.
transportation of discharged, 1788c.
Military Keservations, 1599a, 1625a, 2480.
(Sec Reservations, and Public L>intl*.>
Military Schools (see Schools) :
appointments to Volunteer Army, 5l^a.
Military Secretary's Department (see Military
Secretary's Office) :
appointments, 663a.
appropriation, 663c.
changed to Adjutant-General's Depart
ment, 663d.
chief of, a member of Board of Commis
sioners of Soldiers' Home, 2263a.
commissioned officers, 663b.
composition, 663a.
details, 663a.
employees, 663c.
Military Secretary, rank of, 663a.
officers, effect of consolidation, 663b.
officers subject to Chief of Staff, 663a.
promotions, 663a.
rank, 663a.
Military Secretary's Office, 663a, 663b, 663c,
663d. (See Military Secretary's Dc-
imrtment.)
Military Storekeeper, 706a.
Military Stores, 607a, 1178a. (See Funds.
Ordnance Department, Sales, and
Stores.)
Military Telegraph and Cable Lines:
Alaska, estimates for extension of, etc.,
1233a.
Military Traffic:
time of war, 720a.
Militia (sec District of Columbia M Hit in.
National Guard, and JYarol Battal-
ion:
accounts, 1693a.
accouterments, issue of, 1700a.
active service, 1669a, 1670a, 1671a, 1672a,
1673a, 1674a.
actual service, allotments, 1693a.
adjutant-general, 1664a.
allotment, 1693a.
allowances, 1662a, I663a.
ammunition. If.'.Oa. 1700a.
exchange of. 1700a.
issue of, 17'Hia.
annual drill. 10f.iv.
appointments to Volunteer Army, 522a.
apportionments, 1670a, 1691b.
IMS
1346
INDEX.
National Home for Disabled Tolnnteer Soldiers :
admission to Government Hospital for
Insane, 2347a, 2347a, note, 2347b.
Board of Managers, 939a, 939b.
National Sanitarium at Hot Springs, S.
Dak., 939a, 939b.
National Parks:
Gettysburg, 2391a.
Statue of Liberty, Bedloes Island, 2447a.
Yellowstone, 2443a.
National Quarantine, 2068a-2068c. (See
Quarantine.)
National Bed Cross Society:
act of incorporation, Appendix C, pages
1330-1334.
National Sanitarium at Hot Springs, S. Dak,
939a, 939b.
National Society, Daughters of American Revo-
lution :
penalty for improper use of badge of,
1363b.
National Trophy, 1201a. (See Medals, and
Decorations. )
Naturalization (see Citizenship) :
anarchists, penalty for aiding to procure,
1892a.
anarchy, etc., declaration as to, 1880b.
cancellation of certificate of citizenship,
1892f.
certificate as to arrival, 1880b.
of citizenship, cancellation of, 1892f.
penalty for isuing false, 1892g.
certified copies of records, etc., to be evi-
dence, 18921.
change of name, 1881b.
children, 1871a, 1880b, 1889a.
courts having jurisdiction, 1880a, 1892a.
jurisdiction restricted, 1880a.
declaration in open court, 1880b.
of intention, 1880b.
election-day restrictions, 1881b.
examination by United States, 1892e.
evidence as to character, 1880b.
as to residence, 1880b, 1887a.
filing and docketing, 1881b.
Filipinos, 1892m.
-final hearing, 1881a, 1892d.
foreign titles, renunciation of, 1880b.
women married to Americans, 1885a.
fraudulent, punishment for obtaining,
18921.
intention of permanent residence, 1880b.
judicial inquiry, 1892a.
jurisdiction restricted to residents of dis-
trict, 1880a.
language, 1892c.
limit to prosecutions, 1892h.
minors, 1871a, 1880b, 1889a.
name, change of, 1881b.
oath of allegiance to United States, 1880b.
parents during minority of children,
1889a.
penalty for obtaining fraudulent, 1892i.
for issuing false certificates of citizen-
ship, 1892g.
Naturalization — Continued.
persons owing allegiance, but not citizens,
1892m.
petition, final hearing, 1892d.
for citizenship, 1880b.
public notice of, 1881a.
polygamists, etc., forbidden, 1892b.
polygamy, etc., declaration as to, 1880b.
Porto Ricans, 1892m.
previous declaration, 1880b.
procedure, 1880b.
prosecutions, limit to, 1892h.
of prior offenses, 1892J.
qualifications, etc., 1880b.
records, certified copies to be evidence,
18921.
of orders, etc., 1892d.
renunciation of other allegiance, 1880b.
repealing section, 1892k.
residence, evidence as to, 1880b, 1887a.
intention as to permanent, 1880b.
restricted to residents of judicial dis-
trict, 1880a.
rules and regulations, authority to make,
18921.
titles of nobility, renunciation of, 1880b.
United States, rights of, in opposition to,
1892e.
widows and minor children, 1880b.
who are aliens, 1885a.
witnesses, examination of, 1892d, 1892e.
subpoenas to, 1881a.
Naval Battalion:
District of Columbia, 1781a.
duties, 1781a.
laws applicable to, 1781a.
officers, 1781a.
Navigable Waters (see River and Harbor
Works) :
amendments, etc., of act, 1117e.
bridges, litigation, 1114f, 1115b.
penalties, 1115b.
"persons" defined, 1117d, 1119b..
telephone and telegraph rights, 1114a.
time limit, 1117c, 1119c.
dams, damages to private property,
fishways, 1114d.
lights, signals, etc., 1114d.
penalties, 1114f.
"persons" defined, 1114i.
regulations for construction of, 1114b.
removal of, 1114f.
right to alter, etc., 1114h.
rights forfeited, 1114e.
rights reserved for navigation, 1114c.
time limit, 1114g.
Grand River, Missouri, not navigable,
1097a.
obstructions to navigation, 1115a.
regulations for use of, 1113a, 1117a.
wharves, etc., at Porto Rico, 1119a,
Navy:
computing time for retirement, 1379a.
contests for medals, etc., 1201a, 1201b.
INDEX.
1347
Navy — Continued.
enlisted men, computing time for retire-
ment, 1379a.
medals and trophies, contests for, 1201a.
pay, retired enlisted men, 1379a.
retired enlisted men, 1379a.
Newspapers :
preservation requirement repealed, 56b.
subscriptions, 56a, 56b, 58a.
Niagara Falls:
diversion of waters, 1150a, 1150b, 1150c.
1150d.
permits, 1150b, 1150d.
reservation of, 1150a.
Nurse Corps:
rations, 791a.
Nurses :
rations, 791a.
Oaths :
Philippine Islands, 2493.
Officers (see Commissioned Officers) :
assignment of pay, 811a, 909a.
assignment to militia, 1662e.
deceased, accounts of, 1379a.
funeral expenses, 1415a.
Porto Rican Regiment, 505b.
sale of fuel to, 740a.
service required of generals before re-
tirement, 1299a.
Official Misconduct, 1566a.
Open-Market Purchases (see Purchases) :
horses, 732a.
medical supplies, etc., 932a.
ordnance stores, etc., 1169a.
provision for, made general, 1543a.
reports, 932a, 1169a, 1230a, 1543a.
Signal Corps stores, etc., 1230a.
Ordnance :
colleges, issues to, 1292a.
issues to colleges, State schools, etc.,
1292a, 1292b.
Ordnance Department :
American material preferred, 1201a.
annual compensation, 1192a.
appropriations available for two years,
279a.
composition, 1151a.
contests for medals, etc., 1201a, 1201b.
credits for deductions from carriers for
stores lost, etc., in transit, 1178a.
details, 1155a, 1155b.
employees, monthly rate of pay, 1192a.
examinations, 1155a, 1155b.
experiments, material for, 1201a.
funds for stores transferred to Insular
Department, 607a.
loss, etc., of stores in transit, 1178a.
medals, etc., contests for, 1201a, 1201b.
method for charging indirect expenses,
1201c.
morning and evening gun, 1184a.
open-market, procurement of services in,
1169a.
open-market purchases, 1169a.
ordnance and ordnance stores, sale of,
organization, 1151a.
pay, 1155a, 1192a.
Ordnance Department — Continued,
purchases, 1169a.
rifle contests, 1201b.
sale of obsolete historical guns, 1178a,
1640a.
of ordnance and ordnance stores, 1181a.
services, procurement of, in open-market,
1169a.
skilled draftsmen, 1161a.
stores, loss, etc., of, in transit, 1178a.
tests, material for, 1201a.
trophies, etc., contests for, 1201a, 1201b.
Organization :
Board of Engineers, 1098a.
Corps of Engineers, 953a.
Hospital Corps detachment, 924a.
Military Academy detachments, 924a.
militia, 1656a, 1657a, 1661a.
Signal Corps, 1218a, 1219a.
Panama Canal. (See Isthmian Canal, and
Panama Canal Zone.)
Panama Canal Zone (see Isthmian Canal, and
Isthmian Canal Commission) :
alien labor, eight-hour law not applicable
to, 1085m, 1085n, 1573a, 1573b.
articles, etc., imported from, 1085k.
eight-hour law, 1085m, 1085n, 1573a,
1573b.
entry of persons into United States from,
1085k.
government of, 1085b.
imports from, 1085k.
payment to Panama, 1085b.
possession, etc., authorized, 1085b.
tariff laws, 1085k.
temporary government in President, 1085b.
Patented Devices, 68a.
Pay (see Salaries) :
accounts, paymaster, 801c.
pay of army, 801a, 801d.
additional, expert riflemen, 865a.
first class gunners, 862a.
second class gunners, 862a.
annual compensation, monthly payments,
635a, 635b, 635c, 1192a.
assignment of, 81 la, 909a.
assistant to Chief of Insular Bureau,
141d.
associate professor of modern languages,
Military Academy, 1458a.
cadets, 1485a.
chaplains, 1258a, 1258c.
continuous service, 869a, 869b.
contract surgeons, assignment of, 909a.
dental surgeons, assignment of, 909a.
doorkeeper, White House, 706a.
electricians, etc., coast artillery corps,
1443g.
coast and field artillery, 1443e.
employees of Ordnance Department, 1192a.
enlisted men, Porto Rican Regiment,
505b.
Signal Corps, 1224a, 1224b.
expert riflemen, 865a, 865b.
extra-duty, 745a, 1510a.
college details, 1291a.
first-class gunners, 862a.
1348
INDEX.
Pay — Continued,
gunners, 862a.
Hospital Corps, 919a.
longevity pay to retired officers, 824a,
824b.
militia, 801b, 1662a, 1963a.
National Guard, deductions from, 1742a,
1750a.
officers detailed in Ordnance Department,
1155a.
with Philippine Constabulary, 1332a.
Porto Rican Regiment, 505b.
retired brigadier-generals having civil war
service, 1303c.
enlisted men, 1303a, 1379a.
officers, 824a, 824b, 1303a, 1323a, 2474a.
officers on active duty, 1303b.
retired officers on active duty, 1303b.
riflemen, expert, 865a.
second-class gunners, 862a.
transfer of, 81 la, 909a.
Pay Accounts:
appropriation for Army, 801d.
assignment of, 909a.
paymasters' accounts, 801e.
Pay Department (see Pay) :
accounts, army appropriation, 801a, 801d.
of paymasters, 801c, 801e.
army appropriation, how disbursed, etc.,
801a, 801d.
commutation of quarters, 830a.
enlisted men, 862a.
paymasters' clerks, travel allowances,
847a.
quarters, 830a.
travel allowances, paymasters' clerks,
847a.
Paymaster-General's Office :
assignment of paymasters' clerk to, 801e.
Paymasters' Clerks:
assignment of, to Paymaster-General's of-
fice, 801e.
sea travel, 847a, 847b.
Penal Offenses:
extortion, 1566a.
Penitentiary (see Prisoners) :
good conduct allowance, 1837a, 1837b,
1837c.
restoration of, forfeited, 1837b.
Pensions :
age made a disability, 2151c.
age rating, 2151a.
attorneys' fees, 2203a.
burial expenses, 2136a.
children's pensions to cease, 2149a.
civil war, 2151a, 2151b, 2151c, 2201a,
2201b.
dependent pension laws, 2151a, 2151b,
2151c, 2154a.
dependent relatives, 2149a, 2149b, 2154.
discharge, effect upon prior service, 2201a,
. 2201b.
deceased inmate National Home, 2328a.
during widowhood, 2149a.
effect of honorable discharge, 2201,
2201b.
evidence, 2201a, 2201b.
Pensions — Continued.
general pension laws, 2125a, 2131a, 2136a.
honorable discharge, effect of, on prior
service, 2201a, 2201b.
increase of, 2125a, 2131a, 2166a, 2151a.
Indian war service, 2167a, 2167b.
inmates of Government Hospital for the
Insane, 2347a, 2347a, note, 2347b.
loss of limb, 2131a.
Mexican war, increase of, 2166a, 2151a,
2151b.
militia, 1687a.
minor children of insane pensioner, 2347a.
penalty for procuring legislation, etc.,
2203a.
reimbursements, 2136a.
remarriage, 2149a, 2149b, 2167a.
restored on renewed widowhood, 2149a.
retained by State Homes, 2324b.
service pension, 2151a, 2151b, 2151c.
total blindness, 2125a.
widows, 2149a, 2149b, 2154a, 2167a.
wife of insane pensioner, 2347a.
Periodicals, 58a.
Permits, 980. (See District of Columbia, and
Buildings. )
Persons :
denned, 11141, 1117d, 1119b.
Philippine Commission, Acts of, 2475-2495,
2481a, 2485a-2485c. (See Army, and
Philippine Islands.)
Philippine Constabulary :
chiefs and assistant chiefs, officers de-
tailed as, 1332a.
leaves of army officers serving with, 2495.
Philippine Islands (see Philippine Commis-
sion, Philippine Scouts, and Arnijj) :
acts of Congress relating to, 2496, 2497.
annual tax for roads, etc., 2492.
army officers as justices of the peace,
2481.
arrest on reservations, 2480.
attorneys, 2475.
civil actions, 2476.
civilian witnesses, 2477.
commercial intercourse, 2112b.
criminal actions, 2476.
depositories of public moneys, 290a.
elections, 2485a-2485c.
establishment of civil provincial govern-
ments, 2491.
extradition, 2093a, 2093b, 2093c.
fees, 2477, 2481.
fugitives from justice, 2093c.
government of the Moro Province, 2487-
2490.
habeas corpus, 2478, 2479.
insane natives serving in Army, 2348a.
inter-island traffic, 126g.
jurisdiction over reservations, 2480.
justice of the peace, jurisdiction, 2476.
lands, public, 1599a, 1599b, 1599c, 2480.
leaves of absence, 828a, 2495.
licenses for sale of liquors, 2480, 2481.
to harbor vessels, 126j.
liquors, penalty for sale, gift, etc., of,
2481a.
INDEX.
1349
Philippine Islands— Continued.
military reservations, 1599a, 2480.
mining claims, 2480.
Moro Province, salaries, 2488, 2489, 2490.
navigation laws, enforcement of, 126k.
oath of office, 2493.
office, restrictions on election or appoint-
ment to, 2485b.
permits to foreign vessels, 126j.
property exempt. from taxation, 2480.
provincial officers, eligibility, 2491.
provost courts, jurisdiction, 2476.
public lands, 1599a, 1599b, 1599c, 2480.
qualifications of electors, 2485a-2485c.
registration tax, 2485.
regulations governing trade, 126k.
reservations, jurisdiction over, 2480.
military, 1599a, 2480.
restrictions on trade with, 126c, 126e,
126f, 126g, 126h, 126i, 126j.
right of eminent domain, 2483.
salaries, Moro Province, 2488, 2489, 2490.
sales of liquors in, 2480, 2481, 2481a,
2482.
on reservations, 2480.
saline lands, 1599b, 1599c.
sea travel, 847b.
tariff duties, 2112a, 2496, 2497.
tax for roads, etc., 2492.
toll roads and bridges, 2494.
tonnage tax on foreign vessels, 126j.
trade, restrictions on, 126c.
transportation of passengers, 126f, 126g,
126h, 126i.
vessels exempt from tonnage dues, 2497.
trading between United States and,
126c.
trading with, 126e, 126f, 126g, 126h,
126i, 126J, 126k.
transporting passengers, 126f, 126g,
126h, 126i.
voting, persons disqualified from, 2485c.
witnesses, civilian, 2477.
Philippine Scouts (see Philippine Islands) :
continuous service, 869a, 869b.
service on Philippine Constabulary, 501a.
Photographs, 68f.
Porto Rico (see Porto Rican Regiment) :
bridges, time limit, 1119c.
enlistments in Regular Army, 505a.
wharves, etc., 1119a, 1119c, 1119d, 1119e.
Porto Bican Regiment (see Porto Rico) :
allowances, 505b.
appointments, 505b.
citizens, appointments, 505b.
enlistments, 505b.
composition, 505b.
continuous-service pay, 869a.
details, 505b.
enlistments, 505b.
examinations, 505b.
field officers, 505b.
infantry, 505b.
officers, 505b.
- pay and allowances, 505b.
reserve, 505b.
Porto Rican Regiment — Continued,
retirement of enlisted men, services as an
officer, 869a.
services of enlisted men as officer, 869a.
service outside of Island, 505a.
vacancies, 505b.
Post Commissary-Sergeants :
additional, 762a.
Post Exchange:
amusement rooms, etc., 715a.
appropriation, 715a.
buildings and equipments for, 715a.
Post Quartermaster-Sergeants :
additional, 707a.
Post Schools (see Schools, and Service
Schools) :
buildings and equipments for, 715a.
prizes, 714a.
Posts (see Barracks) :
artillery troops, 1086a.
restrictions on establishment of, 1621a.
on expenditures, 1086a.
President:
cadets, appointment of, 1479a.
commerce during hostilities in Philippine
Islands, 2112b.
detail of civil employees, lla.
to colleges, 1290a, 1291a.
habeas corpus, suspension of, 361a.
militia, appointment, 1670a.
calling forth of, 1669a.
length of service, 1673a.
tariff duties and taxes, Philippine Islands,
2112a.
Printing:
appropriations, restrictions on, 68e.
books and documents, restrictions on, 68b.
documents, cost of binding and, 68c.
restrictions on, 68b.
estimates for printing and binding, 68e.
illustrations, etc., 68f.
letter heads, 68e.
note heads, 68e.
Quartermaster's Department, 716a.
reports, cost of binding and, 68c.
Prisoners (see Clothing, Military Prisoners,
and Penitentiary) :
donation of clothing to, 1788b.
of money to, 1788a.
good conduct allowance of United States
prisoners, 1837a, 1837b, 1837c.
rations, 791a.
reward for escaped, 1409a.
transportation to their homes, 1788c.
United States, good conduct allowance,
1837a, 1837b, 1837c.
restoration of forfeited good conduct al-
lowance, 1837b.
Prisons :
details for, 679a, 679b.
transportation of discharged prisoners,
1788c.
Prizes (see Medals, Trophies, and Decora-
tions) :
cooks and bakers, 714a.
Proceeds of Sales (see Sales) :
disposition of, 1106a, 1181a.
1350
INDEX.
Promotions (see (Appointments) :
chaplains, 1258a.
Military Secretary's Department, 663a.
Porto Rican Regiment, 505b.
Signal Corps, 1222a.
Property (see Public Property) :
arms, etc., issued to militia, 1700a, 1700b,
1700c.
lost or destroyed, pay for, 1742a.
proceeds of, 75a.
sale of, 1106a, 1181a.
serviceable, sale of, 1181a.
transfer of, 1106a.
unserviceable, sale of, 1106a.
Public Buildings and Grounds:
Chief of Engineers to have charge of,
973a.
trespassers, 978a.
use of, prohibited, 978b.
Public Lands (see Lands, and Reservations) :
Hawaii, 1625a.
Mining claims on, in Philippine Islands,
2480.
Philippine Islands, 1599a, l'599b, 1599c,
2480.
cutting timber on, 2480.
law concerning, 2480.
mining claim on, 2480.
sale of, 1106a.
Public Moneys (see Depositories, Treasury
Department, and Philippine Islands) :
depositories, 290a.
received for stores transferred to Insular
Department, 607a.
from deductions from carriers for loss,
etc., of stores, 1640a.
Public Printer:
duplicating processes, etc., 68a.
requisition on, for extra editions, 68d.
Public Property (see Property) :
arms, etc., issued to militia, annual ac-
count of, 1700a, 1700b, 1700c.
lost or destroyed, pay for, 1742a.
proceeds of, 75a.
Public Works:
eight-hour law, Canal Zone, 1085m, 1085n,
1573a, 1573b.
labor and material, protection of, 1576a.
Punishment:
extortion, 1566a.
Purchases :
American material preferred, 1201a.
books, etc., 58a.
carriages, prohibited, lOOa, lOOb.
horses from officers, 741a.
medical stores, 932a.
militia, 1692a.
newspapers, 58a.
open-market, 732a, 932a, 1169a, 1230a,
1543a.
ordnance and ordnance stores, etc., 1169a.
periodicals, 58a.
river and harbor works, llOGa.
schools, 1515b, 1519a.
Signal Corps, stores and equipments,
1230a.
small amounts, 768a.
Quarantine :
control of stations, 2068a, 2068b.
detention stations, establishment of,
2068a.
land, condemnation proceedings, 2068b.
purchase of, 2068b.
transfer of title, 2068b.
. Marine-Hospital Service, 2068b, 2068c.
Public Health and Marine-Hospital Serv-
ice, 2068b, 2068c.
punishment for violations of laws, etc.,
2068c.
unlawful entry of stations, etc., 2068c.
yellow fever stations, establishment of,
2068a.
Quartermaster-Sergeants :
additional, 707a.
Quartermaster's Department :
amusement rooms, 715a.
army service men, West Point, 1510a.
clothing balances, 753a.
doorkeeper at White House, 706a.
extra-duty pay, 745a, 1510a.
forage, 741b.
fuel, 740a.
gratuitous issues, 750a.
heat, 740b.
libraries, schools, etc., 715a.
light, 740b.
post-quartermaster sergeants, additional,
707a.
printing, 716a.
purchase of horses from officers, 74 la.
sale of fuel to officers, 740a.
Quarters :
commutation, 830a, 1663a.
Bank:
assistant to Chief of Insular Bureau, 141d.
captains on General Staff Corps, 2471.
chaplains, 1258a, 1258c.
Corps of Engineers, 953a.
Hospital Corps, 919a.
Military Secretary's Department, 663a.
Porto Rican Regiment, 505b.
retired brigadier-generals having civil war
service, 1303c.
Rations (see Subsistence Department) :
applicants for enlistment, 791a.
emergency, 770a.
enlisted men, etc., 769a, 791a.
enlisted men in low condition of health,
769a.
general prisoners, 791a.
issues of, 769a.
militia, 1681a, 1683a.
nurses, 79 la.
Record and Pension Office (see Military Sec-
retary's Department, Military Secre-
tary's Office, and Adjutant-General's
Office) :
appropriation, 663c.
consolidation of, with Adjutant-General's
Office, 663a.
employees, 663c.
officers not affected by consolidation, 663b.
records of Indian wars transferred to,
1239a.
INDEX.
1351
Records :
transfer of, to War Department, 1239a.
Recruiting Service, 679a, 679b. (See Recruit-
ing Stations and Prisons.)
Recruiting Stations:
details for, 679a, 679b.
Red Cross Society:
act of incorporation, Appendix C, pages
1330-1334.
Reenlistment (see Enlisted Men and Enlist-
ment) :
Porto Rican Regiment, 505b.
Regular Army (see Army) :
continuous-service pay, 869a.
Porto Ricans eligible for enlistment, 505a.
retirement of enlisted men, 869a.
services of enlisted men as officers, 869a.
Regulations :
for canals, etc., 1113a, 1117a.
Reports :
board of examiners, Volunteer Army, 522a.
cost of printing and binding, 68c.
extra copies, 68d.
illustrations, etc., 68f.
militia, 1662d, 1664a, 1692b.
inspections of, 1693a.
open-market purchases, 932a, 1169a,
1230a.
skilled draftsmen, etc., 1161a.
Reservations (see Lands, and Public Lands) :
arrest on, 2480.
cutting timber on, 2480.
Hawaii, 1625a.
military posts, 1625a.
mining claims on, 2480.
Philippine Islands, 1599a, 2480.
arrest on, 2480.
cutting timber on, 2480.
jurisdiction. over, 2480.
military authorities in charge of, 2480.
mining claims on, 2480.
sale of liquor on, 2480.
Reserves :
Porto Rico Regiment, 505b.
Residence :
legal, in Philippine Islands, 2485.
Retired Enlisted Men:
detail of noncommissioned officers to col-
leges, 1290a, 1291a.
pay, 1379a.
service as officers of volunteers, 869a.
for retirement, 869a, 1379a.
Retired Officers (see Retirement) :
active duty assignment to, 1303a.
allowances, 1323a.
Chief of Artillery, rank, pay, etc., of,
2474a.
of Coast Artillery, rank, pay, etc., of,
2474a.
details to colleges, 1290a, 1291a.
with organized militia, 1323a.
doorkeeper at White House, 706a.
having civil war service, rank and pay of,
• 1303c.
increase of rank and pay, 1303a.
longevity pay, 824a, 824b.
Retired Officers— Continued.
pay, 824a, 824b, 1303a, 1303b, 1303c,
1323a, 2474a.
on active duty, 1303b.
rank, 1303a.
Retirement (see Retired Officers) :
brigadier-generals having civil war serv-
ice, 1303c.
computing time for, 869a, 1379a, 1381a.
continuous service, 869a, 869b.
detail extending beyond date of, 577a.
double time, 1381a.
enlisted men, service for, 1381a.
service as commissioned officer of vol-
unteers, 869a.
service required of generals before, 1299a.
Returns :
militia, 1664a.
Revised Statutes:
section 192 amended, 56b.
section 192 modified, 56a.
section 232 repealed, 1650a.
section 858 amended, 1815a.
section 1014 modified, 2093a.
section 1111 amended, 1508a.
section 1305 amended, 879a.
section 1308 amended, 753a.
sections 1625 to 1660 repealed, 1650a,
1661a.
section 1661 amended, 1691a.
section 2165 repealed, 1892k.
section 2167 repealed, 1892k.
section 2168 repealed, 1892k.
section 2173 repealed, 1892k.
section 3646 amended, 631a.
section 3648 modified, 58a.
section 3679 amended, 272a.
section 4076 amended, 1879a.
section 4693 modified, 2149a.
section 4708 amended, 2149a.
section 5270 extended, 2093c.
section 5271 extended, 2093c.
section 5272 extended, 2093c.
section 5273 extended, 2093c.
section 5274 extended, 2093c.
section 5275 extended, 2093c.
section 5276 extended, 2093c.
section 5277 extended, 2093c.
section 5278 modified, 2093b.
section 5279 modified, 2093b.
section 5481 amended, 1566a.
Reward (see Deserters and Prisoners) :
apprehension of escaped prisoners, 1409a.
apprehension of deserters, 1409a.
Rifle clubs:
sale of ammunition, etc., to, 1700f.
sale of arms to, 1700e.
Riflemen, Expert, 865a, 865b.
Right of Eminent Domain, 2483.
River and Harbor Works (see Navigable
Waters) :
board of engineers, 1098a.
canals, etc., regulations for use of, 1113a.
condemnation proceedings, 1106b.
dredges, 1103a.
regulations for use of canals, etc., 1113a,
1352
INDEX.
Hirer and Harbor Works — Continued.
sale of unserviceable property, llOGa.
transfer of property, llOGa.
unserviceable property, sale of, llOGa.
transfer of, 1106a.
use of canals and similar works of navi-
gation, 1113a.
Roads:
Alaska, 2498, 2499.
Philippine Islands, 2492, 2494.
Ruins (see Monuments) :
acquisition of lands, 1614b.
historic, permits for excavations, etc.,
1614c.
regulations concerning, 1614d.
reserving lands, 1614b.
setting apart of, 1614b.
penalty for injury to, 1614a.
Salaries (see Pay) :
annual, how paid, etc., 635a, 635b, 635c,
1192a.
clerks and messengers at department
headquarters, 572a.
custodian and others, of Washington
Monument, 990a.
employees of Ordnance Department,
1192a.
forfeiture, 635c.
monthly payments of, annual compensa-
tion, 635a, 635b, 635c, 1192a.
Sales (see Property, and Proceeds of Sales) :
disposition of proceeds, 1106a, 1181a.
liquors in Philippine Islands, 2481, 2482.
on reservations in Philippine Islands,
2480.
medical supplies, 935a.
obsolete historical guns, 1178a, 1640a.
public lands in Philippine Islands, 1599b.
serviceable ordnance and ordnance stores,
unserviceable property, 1106a.
Saline Lands, 1599b, 1599c.
Sappers and Miners, 1515b.
School of Application for Cavalry and Field
Artillery, 1519a.
School of Submarine Defense, 1519a.
Schools (see Post Schools, Service Schools,
and Army War College) :
Alaska, 2498.
appointments to Volunteer Army, 522a.
Army War College, 1514a.
artillery, 1519a.
buildings and equipments for, 715a.
engineer, lf>15a, 1515b.
general service and staff college, 1519a.
of application for cavalry and field artil-
lery, 1519a.
post schools, 715a.
prizes, 714a.
purchases, 1515b, 1519a.
submarine defense, 1519a.
Sea Traffic:
between United States and Philippine
Islands, 126c, 126e, 126f, 126g, 126h,
126i, 126j, 126k.
inter-island, Philippine Archipelago, 126g.
Sea Traffic — Continued.
Philippine Islands, licenses to harbor ves-
sels, 126j.
navigation laws, 126k.
permits to foreign vessels, 126j.
regulations governing, 126k.
tonnage tax, 126j.
restrictions on, with Philippine Islands,
126e, 126f, 126g, 126h, 126i, 126j.
Sea Travel (see SteamsJiips) :
contract surgeons, 841a.
dental surgeons, 84 la.
expert accountants, 847a.
paymasters' clerks, 841a, 847a.
Secretary of War:
canals, etc., regulations for use of, 1113a.
depositories, designation of, 290a.
detail of army officers to militia, 1662d,
1662e.
funds far levees, Mississippi River, 1036a.
horses, purchase of, from officers, 74 la.
maintenance of Statue of Liberty, 2447a.
militia, detail of army officers for, Hir.i'd.
1662e.
reports to Congress, 1664a.
open-market purchases, reports of, 932a,
1169a, 1230a.
purchase of horses from officers, 741a.
Sergeants :
Signal Corps, 1224a, 1224b.
Serums, 910a.
Service :
continuous, for retirement, 869a.
continuous-service pay, 8G9a.
not personal, 932a.
procurement of, in open market, 1169a.
voluntary, 272a.
Service Schools (see Schools, and Army War
College) :
Army War College, 1514a.
artillery school, 1519a.
engineer school, 1515a, 1515b.
general service and staff college, 1519a.
of application for cavalry and field ar-
tillery, 1519a.
of submarine defense, 1519a.
Sharpshooters, 865b.
Signal Corps:
chief of telegraph and cipher bureau of
executive office, 1219a.
composition, 1218a, 1219a.
details, 1222a.
enlisted men, 1224a, 1224b.
open-market purchases, 1230a.
organization, 1218a, 1219a.
pay of enlisted men, 1224a, 1224b.
promotion, 1222a.
purchases of stores and equipment, 1230a.
vacancies, how filled, 1222a.
Signal Office:
annual estimates, etc., 1224c.
'skilled draftsmen, etc., 1224c.
Skilled Draftsmen, 1161a, 1224c.
Soldiers :
burial of indigent, 2460a.
homestead rights, 1587a.
INDEX.
1353
Soldiers — Continued,
transportation of remains, 1416a, 1417a,
1418a.
transportation of remains of honorably
discharged, 1418a.
Soldiers' Home (see National Homes, and
State Homes) :
Board of Commissioners, Military Secre-
tary a member of, 2263a.
Sons of Veterans:
penalty for improper use of badge of,
1363b.
Stamped Envelopes, 68e.
State Homes, 2321a, 2324a, 2324b. See
National Homes, and Soldiers' Home.)
States :
issues of ordnance and ordnance stores
to, 1292a, 1292b.
Statue of Liberty, Itedloes Island:
maintenance of. 2447a.
Steam Laundries:
outside work permitted, 719a.
use of proceeds, 719a.
Steamships (see Sea Traffic, Sea Travel, and
Transport Service) :
in transport service not to be disposed
of, 126a.
Stores :
issues of, to States, 1292a, 1292b.
military, loss, etc., of, in transit, 1178a.
militia, 1692a.
transferred to Insular Department, 607a.
Submarine Mines, 1515b, 1443f.
Subscriptions (see Purchases, Newspapers,
and Disbursements) :
books, newspapers, etc., 56a, 56b, 58a.
Subsistence :
militia, 1662a, 1693a.
Subsistence Department :
emergency ration, 770a.
ice, issue of, to organizations of enlisted
men, 769a.
issues of rations to enlisted men in low
condition of health, 769a.
payments of small amounts, 768a.
post commissary sergeants, additional,
762a.
purchases of small amounts, 768a.
rations, 769a, 770a, 791a.
Supplies (see Purchases) :
militia, 1692a.
open-market purchases, 932a, 1169a, 1230a,
1543a.
sales of medical, 935a.
Surgeon-General of the Army (see Medical
Department) :
advisory board for hygienic laboratory,
91 Ob.
viruses, toxins, etc., 910a.
Surgeons (see Contract Surgeons) :
acting assistant, burial expenses of,
1417ft.
contract, 907a.
assignment of pay by, 909a.
authority of when in charge of hospital,
91 3a.
Surgeons — Continued,
dental, assignment of pay by, 909a.
number authorized, 908a.
detail to Military Academy, 908a.
sea travel, 841a.
Target Practice:
militia, 1662c.
Tariff Duties:
Philippine Islands, 2112a, 2496, 2497.
vessels exempt from tonnage dues, 2497.
Tax:
Philippine Islands, 2112a, 2492.
property exempt from, 2480.
registration, 2485.
Telegraph Lines:
Alaska, 1233a.
right to cross bridges, 1114a.
Telegraph and Cipher Bureau of Executive
Office, 1219a.
Territories :
issues of ordnance, etc., to educational
institutions in, 1292a, 1292b.
Timber, 2480. (See Public Lands and Res-
ervation.)
Tonnage Dues, 2497.
Toxins, 910a.
Trade :
Philippine Islands, 126e, 126f, 126g,
126h, 126i, 126j, 126k.
permits to foreign vessels, 126j.
regulations governing, 126k.
tonnage tax, 126j.
restrictions on, with Philippine Islands,
126c, 126e, 126f, 126g, 126h, 126i.
Traffic :
time of war, 720a.
Transfers :
civil employees, 28b.
Transport Service:
not to be discontinued without action of
Congress, 126a.
steamships not to be disposed of, 126a.
transports, restrictions on use of, 724a.
Transportation :
bond-aided railroads, 843a, 844a.
by sea of army supplies, 126d.
discharged military prisoners, 1788c.
in kind, 843a, 844a.
land-grant railroads, 843a, 844a.
mileage, deductions from, 843a.
militia, 1662a, 1693a.
passengers to and from Philippine
Islands, 126f, 126g, 126h, 126i.
Philippine Islands, vessels trading be-
between United States and, 126c-126k.
remains of acting assistant surgeons,
1417a.
civilian employees of Army, 1418a.
deceased officers and soldiers, 1416a,
1417a.
honorably discharged soldiers, 1418a.
transports, use of, 724a.
troops in time of war, 720a.
vessels trading with Philippine Islands,
126c-126k.
1354
INDEX.
Transports :
restriction on use of, 724a.
Travel Allowances (see Mileage) :
bond-aided railroad, 843a, 844a.
militia, 1663a, 1693a.
officers traveling without troops, 840a.
transportation in kind, 843a, 844a.
Treasury (see Depositories, Public Moneys,
and Treasury Department) :
depositories, 290a.
Treasury Department (see Accounts, Account-
ing Officers, and Disbursing Officers) :
accounts, closing of, 605b.
limitation of," 605b.
paymasters', 801c.
pay of the Army, 801a.
annual statement to Congress, 75a.
credits for deductions from carriers for
stores lost, etc., in transit, 1640a.
depositories, 290a.
limitation of accounts, 605b.
proceeds of public property, 75a.
Troops :
transportation of, in time of war, 720a.
Troops of the Line:
Artillery Corps, 1443a.
cavalry band, 1424a.
Trophies (see Medals, Decorations, and
Prizes) :
annual contest for, 1201a, 1201b.
Uniform :
chaplains, 1258a. '
Union Veteran Legion:
penalty for improper use of badge of,
1363b.
Union Veterans' Union:
penalty for improper use of badge of,
1363b.
United Spanish War Veterans:
penalty for improper use of badge of,
1363b.
United States Prisoners (see Penitentary) :
good-conduct allowance, 1837a, 1837b,
1837c.
Vacancies (see Appointments, and Promo-
tions) :
Corps of Engineers, 953a.
Judge - Advocate General's Department,
694a.
Porto Rican Regiment, 505b.
Vehicles :
name of Department to be printed on,
lOOa, lOOb.
not to be purchased or maintained, lOOa,
lOOb.
Vessels (see Sea Traffic, Sea Travel, and
Steamships) :
exempt from tonnage dues, 2497.
inter-island traffic, Philippine Islands,
126g.
passengers between United States and
Philippine Islands, 126f, 126g, 126h,
126i.
Philippine Islands, license to harbor ves-
sels, 12GJ.
Vessels — Continued.
Philippine Islands, permits to foreign ves-
sels, 126j.
tonnage tax, 126j.
trading between United States and Phil-
ippine Islands, 126c-126k.
Vessels of the United States :
exempt from tonnage dues, 2497.
transportation of army supplies, 126d.
Viruses, 910a.
Voluntary Service, 272a. (See Service.)
Volunteers (see Volunteer Army) :
appointments, as judge-advocates, 694a.
continuous-service pay, 869a.
enlisted men, service as commissioned
officers, 869a.
how organized, 518a.
National Sanitarium at Hot Springs, S.
Dak., 939a, 939b.
service as commissioned officer of, 869a.
time computed for retirement, 869a.
Volunteer Army (see Volunteers) :
age limit, 522a.
appointments, 522a.
board of examiners, 522a.
reports, 522a.
commissions in, 522a.
examinations for commissions, 522a.
graduates of military schools, 522a.
military schools, 522a.
organization of, 518a.
rules and regulations, 522a.
schools, 522a.
service in militia, 522a.
Volunteer Forces (see Volunteer Army, and
Military Establishment) :
how organized, 518a.
Vote:
legal residence in Philippine Islands,
2485.
War Department:
assignment of clerks, messengers, and
laborers to duty in, 573b.
transfer of records to, 1239a.
Washington Monument:
care of, 990a.
salaries, 990a.
Wharves, etc. :
Porto Rico, 1119a, 1119c, 1119d, 1119e.
White House:
doorkeeper, pay and allowances of, 706a.
Witnesses :
competency determined, 1815a.
fees of civilian, Philippine Islands, 2477.
refusal of civilian to testify, 2477.
Woman's Relief Corps:
penalty for improper use of badge of,
1363b.
Writ of Habeas Corpus:
Philippine Islands, 2478, 2479.
suspension of, 361a.
Yellowstone National Park:
Use of electricity by private parties,
2443a.
TABLE OF REVISED STATUTES CITED IN THE ORIGINAL WORK AND
THE SUPPLEMENT, AND THE PARAGRAPHS IN WHICH THE CITA-
TIONS OCCUR
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
152
3
f 1388
437
451
224
158
12
\ 1388a
f 452
441
159
12
225
128
\ 1893
161
20
226
140
442
453
163
32
( 141
463
1894
164
33
£,£,1
\ 184
467
1970
165
34
228
129
470
2113
166
35
229
130
471
2114
167
38
230
131
472
2115
168
39
231
132
751
346
169
25
/ 1650a
752
347
170
40
Z6Z
\ 1661a
753
348
172
28
233
183
754
349
173
21
9QA
f 219
755
350
174
22
Zoo —
1 632
756
351
175
23
237
635
757
352
176
24
255
1640
758
353
177
13
271
193
759
354
178
14
278
215
760
355
179
15
280
216
761
356
180
17
281
217
762
357
181
18
009
/ 218
763
358
182
19
ZoZ
1 1390
764
359
/ 51
283
197
765
360
183
\ 691
SOI
283
766
361
184..
110
305
284"
/ 1815
185
111
306
309
oOo
\ 1815a
186
112
307
310
882
1818
187
113
308
311
883
1819
188
114
309
312
886
1820
189
115
310
304
887
1821
190
116
346
332
888
1822
( 56
347
333
895
1823
192
56a
354
336
896
1824
56b
J 334
905
1825
1OQ
KG
355
I 1 5Q3
qnfi
1826
194
87
356
337
908
1827
195
86
357
338
1014
2093a
196
90
f 313
1059
362
358
197
92a
1 339
1060
363
214
117
359
340
1061
364
215
135
360
341
1062
365
216
122
361
342
1063
366
217
123
364
343
1064
367
218
124
367
344
1065
368
91 Q
/ 125
383
345
1066
369
ziy
1 709
391
314
1067
370
/ 126
392 .
315
1068
371
220..
S «r>/\
1355
1356
REVISED STATUTES CITED.
Table of Revised Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections).
Military
laws
(para-
graphs) .
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
107(K
373
1128 ,
662
1187
800
1071
374
1130
667
1188
801
1072
375
1131
680
1189
802
1073
376
1 1 Q9
I 121
1190
805
1074
377
lloZ
1 702
1191
592
1075
378
1133
708
1192
798
1076
379
1134
711
1198
692
1077
380
1135
710
1199
696
1078
381
( 734
1201
697
1080
382
1136
\ 1621
1202
1810
1081
383
1622
1203
1801
1082
384
1138
719
f 589
1205
1083
385
U40
758
I 1284
1084
386
1141
763
1206
958
1085
387
1142
762
1207
957
1086
388
1143
766
1209
1342
1087
389
f 690
1210
1344
1088
390
1144
764
f 566
1089.. .
391
778
1Z11
\ 1347
1090
392
1145
779
1212
1349
1091
393
1147
776
1213
1486
1092
394
1148
775
1214
1278
1093
395
1149
780
1215
1487
1094
500
1150
767
1216
1358
1097
556
1151
953
1217
558
1098.
557
1152
971
1219
565
f 1437
1153
1089
f 756
1100
{ 1438
1155
968
1220
\ 891
1440
1156
967
1175
1102
1419
1157
970
1221
751
1103
1427
f 567
1222
1332
1104
1420
1158
590
1223
1327
1105
1421
I 960
1224
1331
1106
1445
1159
1158
1288
1107
1450
1161
1159
1 99^
1289
1108
1446
1162
1164
l^ZO.
1290
1109
1162
1163
1165
1290a
1110
1163
1164
1166
( 493
1226 . ..
1111
1508a
1165
1168
I 1351
1112
506
1166
1167
1227..
1360
1114
570
f 1172
1228
1328
/ 670
1167
\ 1173
1229 .. ..
1329
1116
1 1364
1174
1 230
1330
( 672
1168
899
1231
1627
1117.
\ 1367
1169
f 568
1232
f 1335
1118
f 673
\ 1368
1170
\ 913
903
1234
\ 1413
788
1401
1172
902
1235
743
1119
669
1174
912
1 236
744
( 677
1175
933
1237
1412
11ZU
\ 1371
1176
950
1239
929
1121
1258
1177
951
1241 . ...
1641
1122
1258
1178
952
1243
1297
/ 1260
1182
792
1244
1298
1123
I 1 9fi~1
( PiAQ
1 94^
1 °iO^
1124
^ IZOl
19R4
1183
1 £04
1246
1306
1125
1263
1184
793
1247
1307
1126.
1265
1185
794
1248
1308
1127..
1266
1186..
799
1249..
1309
REVISED STATUTES CITED.
1357
Table of Revised Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
1250
1310
( 852
1609..
437
1251
1311
1 QHQ
897
1610
438
1252
1312
loUo
1176
1611
422
1253
1313
I 1638
1612...
429
1254
1314
/ 853
1615
439
1255
1317
Iou4
1 1637
1619
443
1256
1319
f 879
1620
444
1257
1318
1305
\ 8793
1621
445
1258
1301
1403
1623
433
1259
1320
1306
880
/ 1650a
1260
1293
1307
881
1625 to 1660
1 Ififiln
1261
807
f 753
977
1262
818
1 Qftft
753a
£t 1
1691
1263
819
1 882
1 AQld
1264
811
I 894
1661
-1 OC\f)n
1265
1286
1309
1458
loy/a
1 AQQ
1266
829
1310
1466
loyo
1 AQQo
1267
820
1311
1467
loyoa
19A8
836
1312
1468
1662..
1190
19AQ
817
1313
1463
1663
1191
1270
810
1314
/ 1464
1664
1 AA^i
1192
1193
1273
849
f 824
1315
\ 1470
1479
1666
1194
1274
i 1 Q1 A
1017
1 48O
1667
1195
107K
I loio
825
1318
1481
1668
1197
197fi
865
1319
1482
1669
1198
f JW
1320
1483
1670...
1702
1277
i Q^O
1001
1484
1671
1199
i o.f\q
1322
1489
1753
142
1279
862
1323
1490
1754
/ 143
I 1157
1324
1491
\ 150
1280
862
1325
1494
1755..
144
1281
863
1326
1495
1757
158
/ 868
1397
1497
1758
159
1282
) 1 f>7Q
TOOQ
1400
1759
162
1283
876
1329
1499
1760
163
/ 869
1330
1501
1761
164
1284
\ 1374
1331
1462
1762
165
/ 883
1332
1502
1763
166
1285
\ 1359
1333
1473
1 7A4
41
1287 . . .
742
1334
1469
\ 168
/ 790
1335
1477
1765
169
1288
I DOO
1 3^A
1471
t 170
1289
850
1338
1472
1766
855
1291
898
1339
1485
856
1292
878a
1340
1476
1769
9
/ 777
1341
1511
1773
10
1291
\ 789
f Pase
1774
11
-10QK
770
1342
1 Qfi4
177^
11
1296
749
1420
1402
1776
180
1298
750
1421
/ 447
1777
r 182
1299
/ 782
i 8^4
1437
\ 1376
448
1 77C
\ 486
160
1300
/ 783
1466
564
7179 * .
f 57
1301 .
\ 896
/ 784
1596
1600
419
432
1780
\ 181
} 92
1 895
I 752
1601
1603
420
427
1 171
/ 178
1302..
1358
REVISED STATUTES CITED.
Table of Revised (Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
f 1563
f 1399
2125
1957
1782
1998
1 2253
\ 1876
2126
1958
1784
179
1999
1877
f 557
2127
1791
2466
2000
1878
\ 1959
1792
2467
2001
1879
2128..
1961
1793
2468
2003
2066
2129
1962
1794
2469
2004
2067
2130
1963
f 978
2043
1896
2131
1964
1797
\ 978a
2045
1897
2132
1965
1798
979
2052
1898
2133
1966
f 255
2053
1916
2134
1968
1799
1 980
2054
1919
2135
1969
1800..
995
2055
1907
2136
1971
1801
996
2056
1899
2137
1972
1802
1006
2057
1900
2138
1973
1803
1007
2058
1921
2139
1975
1804
1008
2059
1918
2140
1983
1805
1010
2060
1902
2141
1985
1806
1009
2062
1903
2142
1990
1807
997
2063.. .
1905
2143
1991
1808 .
998
2064
1910
2144
1986
1809
999
2066
1901
2145
, 1987
1810
1001
2067
1906
2146
1988
1811
1002
2073
1920
91 A.n
/ 2001
f 987
2074
1912
\ 2023
1812
\ 1000
2075
1915
/ 2002
2148
1829
988
2076
1913
}2024
1830
985
2077
1914
2003
1835
993
2078
1967
zi4y
1 2025
1838
1595
2079
1922
91 f^n
/ 2004
1841
1777
2080
1923
ZlOU
\ 2026
1856
1778
2081
1924
91 f\1
/ 2005
1857
1779
2082
1925
1 2027
1860
1321
2083
1926
f 2006
2152 .
1977
2051
2084
1927
\ 2028
1978
2052
2085
1928
2153
2008
1979
2053
2086
1929
2154
1996
1980
2054
2087
1930
2155
1997
1981
2055
2088
1931
2156
1998
f 582
2089
1932
2157
2009
1982
\ 2056
2090
1933
f 1880
1983
2057
2100
1936
2165
\ 1881
1984.. .
2058
2101
1937
1892k
1985
2059
2102
1940
2166
1882
1986
2060
2109
1934
f 1884
2167
1987
2061
2110
774
\ 1892k
1988
2062
2111
1941
f 1885
2168
1989
2063
2112
1942
\ 1892k
1990
2064
2113
1943
2169
1886
1991
2065
2114
1944
2170
1887
1992
1870
2115
1945
2171
1888
1993
1871
2116
1950
2172
1889
1994
1872
2117
1951
91 7Q
/ 1890
1995
1873
2118
1952
Zl/O
\ 1892k
f 1397
2119
1953
2174
1891
1996
\ 1874
2120
1954
2257
1581
/ 1398
2121
1955
2258
1582
1997
1 1875
2124..
1956
2289..
1584
REVISED STATUTES CITED.
1359
Table of Revised Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections).
Military
laws
(para-
graphs) .
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
2290
1585
f 186
f 279
3623
3690
2304
1586
1587a
I 637
f 250
3691
\ 624
281
3624
[ 1592
\ 643
3692
f 613
f 1587
3625
251
1 786
2305
[ 1587a
3626
252
r so
2306.
1588
3627
253
81
2307
1589
3628
254
3709
I 1526
2308
1590
3629
255
11527
2309
1591
3630
256
1528
2393
1583
3631
257
3710
1536
2438
1400
3632
25"8
j 83
2460
2069
3633
259
o/ 11
1 1578
2474
2423
3634
260
071 9
f 84
/ 2424
3635
261
O/l/
1 1579
2475
1 94.9^
9A9
f 85
3713
)
2476
1091
3637
263
\ 1580
2477
1619
3638
264
3714
1520
3466
245
f 303
3715
1552
3467
246
3639
593
071 f>
f 712
3468
247
608
o/lo
\ 1533
/ 76
3640
297
3717
1537
3469
1 2'11
621 •
3731
1555
3470
^ ^01
232
3644
298
f 717
3732
3471
248
3645
630
\ 1521
3472
249
/ 631
Q7QO
/ 1522
3473
305
\ 631a
\ 1623
3474
306
3647-
631
Q7QC
/ 82
3475
307
( 58a
\ 1556
3476
308
3648
617
( 1523
3477
f 234
3651
812
fiOQ
Q7Q7
\ 1594
1557
3478
235
3652
610
3738
1572
3479
236
3653
295a
3739
1558
3480
237
3654 . . .
293
3740
1559
3489
238
3657
291
/ 1540
3490
239
3658
292
^±1.
\ 1560
3491
240
3661
68
3742
1561
3492
241
3662
69
( 1541
3743
3493
242
3663
71
\ 1571
3494
243
3664
72
Q7A4
f 1539
3591
285
3665
66
1 1567
3593
296
/ -62
3745
1568
OQQ
3669
1 267
1569
3595
286
f 63
3747
1570
3670
3614
295
\ 268
f 754
3748
3615
299
3672
75
\ 1646
3616
300
f 271
3752
1596
3678
3617
611
\ 620
(79
612
f 272
3828
1532
3618
785
3679
< 272a
1520
290
619
3960
67
3620
301
3681
273
( 58
3995
606
j 302
3682
f 42
55
4076
\ 2072
1879a
3621
974
1091
( 185
3683
54
4664
1022
3622 . .
-i rvoo
1360
REVISED STATUTES CITED.
Table of Revised Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections) .
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
4679..
1027
4779
2213
5271
2093c
4680
1028
4783
2256
5272
2093e
4692
2116
4785
2203
5273
2093c
J.ftQQ
/ 2117
4786
2204
5274
2093c
\ 2149a
4787
942
/ 2090
4694
2118
47»«
Q44
5275
OAQO,,
4695..
2119
4790
945
/ 2091
4fiQfi
9190
( Q47
5276
\9fVQO
4fiQ7
9191
4791
1 Q4O
^uyoc
9flQ'>
4698
2122
4792
9Ofift
5277
i £\jyz
1 90Q3c
4698£
2186
4814
2275
5278
20931)
4699
2136
4815
2263
5279
2093b
4700
2197
4817
2264
5281
2079
4701
2198
AO-\ O
/ 2267
5282
2080
4702
2137
\ 2269
5283
2081
4703
2138
( 889
5284
2082
4819
4704
2200
\ 2271
5285
2083
4705
2142
4820
2280
5286
2084
4706
2144
4821
2276
5287
2085
4707
2148
4822
2277
5288
2086
J.7O8
/ 2149
4823
2278
5289
2087
\ 2149a
4824
2283
5290
2088
4710..
2182
/ 2287
5291
2089
4711
2183
4825
1 2391
^9Q7
901 S
4713
2185
4826
2288
5298
2017
4715
2257
4827
2289
5299
2016
J.71 A
/ 2154a
4828
2290
5300
2019
\ 2227
4829
2298
5301
2029
4718..
2232
4830
2319
5302
2030
4719
2234
4832
2325
5303
2231
4720
2176
4834
2296
5304
2032
4724
2261
4835
2332
5305
2033
4730
2157
4837
2337
5306
2034
4731
2158
4838
2340
5307
2035
4732
2173
4839
2342
5308
2036
4733
2258
4843
2344
5309
2037
4734
2259
4856
2345
5310
2038
4735
2146
g854
2346
5311
2039
4744
2250
4870 . .
2449
5312
2040
( 624
4871
2450
5313
2041
4746
\ 2211
4872
2451
5314
2042
2254
4873
2452
5315
2043
ATIA.1
/ 639
4874
2453
5316
2044
\ 2236
4875.
2454
5317
2045
4748..
2193
4877
2455
5318
2046
4749
2201
4878
2458
5319
2047
4764
2216
4879
2463
5320
2048
J.7AC»
/ 2217
4880
2464
5321
2049
\ 2223
4881
2462
5322
2050
2147
4882
2461
5331
2104
4.7fifi
2224
5153
289
5332
2105
2230
5244
1095
5333
2106
2330
5246
1094
5334
2107
4767..
2215
5248
1093
5335
2108
4768
2220
5250
1096
5336
2109
4769
2221
5251
1092
5337
2110
4776
2242
5252
1038
5338
2111
4777
2243
5253
973
5388
f 1604
4778
2212
5254
1039
\ 1999
REVISED STATUTES CITED.
1361
Table of Revised Statutes cited in the original work and the supplement, and
the paragraphs in which the citations occur — Continued.
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
Revised Statutes
(sections).
Military
laws
(para-
graphs).
5403
103
5493
650
5573
2097
5408
104
5494. .
651
5574
2098
5418
105
5495 ,.
652
5575
2099
5451
1564
5496
653
5576..
2100
5455
1406
[ 654
5577...
2101
5456
1645
5497
655
5578
2102
f 1566
I 1644
5595
462
5481
\ 1566a
5598.
656
5596
463
5483
644
/ 657
5597
464
5501
5486
2255
\ 1565
5598
465
5488
645
5502..
658
5599
466
5489
646
5503
659
5600
467
5490
647
5570
2094
5601
468
5491
648
5571
2095
5492
649
5572. . .
2096
22924—08 86
YC 53698
166431
¥*
*
' ->
-:»* j>
^ -*•••> ~v
>
J >
> r>
>
:>3B> >:»>. > -2
3g ' .fe^
SB* > :» > "Z3
> , >-
i
^* J^
.d
>^^
-.,
>
^
>
^>
J>
>
>
)
)
'
> ^»>
3^ J3^ » .^ ^^> J^>
?^ ^ ^ ^t ^
^^ > >• > Ha* , —» <
^> >"> ~> "3J"? ^
. >> ^> ^> >
^
,>>\^ \.^- ^ -
1^B>$P^ ' \>
!!3^$£^:>til
>0 "^
^3 -•